Master Servicer and Sub-Servicers. (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 Indenture Trustee and the Insurer and shall have full power and authority, acting alone or through one or more Sub-Servicers, 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 Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13. (c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that, (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or (ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices. (d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. (e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement. (f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder. (g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust. (h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 4.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Note Insurer and with reasonable care, and using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality .
(b) The duties of the foregoingMaster Servicer shall include collecting and posting of all payments, the Master Servicerresponding to inquiries of Mortgagors or by federal, in its own name state or the name of a Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, local government authorities with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject investigating delinquencies, reporting tax information to the Mortgages Mortgagors in accordance with the terms of this Agreement. Upon the execution its customary practices and delivery of this Agreement, accounting for collections and from time furnishing monthly and annual statements to time as may be required thereafter, the Indenture Trustee shall furnish and the Note Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer or shall follow its Sub-Servicers customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with any powers of attorney the Indenture Trustee and such other documents furnish to the Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting The Master Servicer shall have the generality right using that degree of the foregoing, skill and attention that the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and exercises with respect to the related Propertiescomparable mortgage loans that it services for itself or others, including consenting to the placement approve applications of a lien senior Mortgagors for consent to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for such approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal to and the original Combined LoanMortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practicesgovernmental entity.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fe) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be 29 34 authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders Noteholders, the Note Insurer and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, (iii) to hold title to any Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee, and (iiiiv) to hold title consent to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf modification of the Indenture Trusteeterms of any Note not expressly prohibited hereby if the effect of any such modification will not be to affect materially and adversely the security afforded by the related Property and the timing of the receipt of payments required hereby or the interests of the Note Insurer; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gf) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust Issuer or (ii) assert jurisdiction over the TrustIssuer.
(hg) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 4.9(c) and in Section 8.6(b)(ix8.7(b)(xvii) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Mortgage Loan Trust 1998-4c)
Master Servicer and Sub-Servicers. (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 Indenture Trustee and the Certificate Insurer and shall have full power and authority, acting alone or through one or more Sub-Servicers, to do any and all things in connection with such servicing and 84 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 Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note a Credit Line Agreement and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note Credit Line Agreement where the terms of such an Underlying Mortgage Note Credit Line Agreement 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 Underlying Mortgage Note Credit Line Agreement and the Mortgage Loan secured by the Underlying Mortgage Note Credit Line Agreement or distributions to be made to Class A NoteholdersOwners. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 8.9 and 4.138.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1996-A)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement on behalf of the Indenture Trustee Trustee, the Owners and the Certificate Insurer in accordance with Accepted Servicing Practices, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) With respect to the Mortgage Loans, the duties of the Master Servicer shall include (i) collecting and posting of all payments, (ii) responding to inquiries of Mortgagors or by federal, state or local government authorities, (iii) investigating delinquencies, (iv) reporting tax information to Mortgagors in accordance with its customary practices, (v) accounting for collections, (vi) furnishing monthly and annual statements to the Trustee and the Certificate Insurer, as applicable, with respect to distributions, (vii) paying Compensating Interest and (viii) making Delinquency Advances and Servicing Advances pursuant hereto. Without The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder
(c) Subject to clause (e) below, without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Certificate Insurer and (y) will not cause either the Upper-Tier REMIC or the Lower-Tier to fail to qualify as a REMIC.
(d) The Master Servicer shall, in accordance with Accepted Servicing Practices, have the right to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for consent may be approved by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal (which may, for this purpose, be determined at the time of any such action in a manner reasonably acceptable to the original Combined LoanTrustee) and the Mortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected or reduced; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangementsgovernmental entity.
(e) The Master Servicer may, parties intend that both the Upper-Tier REMIC and is hereby authorized to, perform any the Lower-Tier REMIC shall constitute a REMIC and that the affairs of its servicing responsibilities with respect each shall be conducted so as to all or certain qualify each as a REMIC. In furtherance of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14intention, the Master Servicer in its own name or in covenants and agrees that it shall act as agent (and the name of a Sub-Master Servicer may be authorized and empowered pursuant is hereby appointed to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, act as agent) on behalf of itself, the Class A Noteholders each such REMIC and the Indenture Trustee or any of them, that in such capacity it shall: (i) use its best efforts to conduct the affairs of each such REMIC at all times that any and all instruments Class of satisfaction or cancellation or Certificates are outstanding so as to maintain the status of partial or full release or discharge and all other comparable instruments with respect to each such REMIC as a REMIC under the Mortgage Loans and with respect to the Properties, REMIC Provisions; (ii) and not knowingly or intentionally take any action or omit to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of take any Mortgaged Property on behalf action that would cause the termination of the Indenture Trustee, REMIC status of either such REMIC or that would subject the Trust to tax and (iii) exercise reasonable care not to hold title allow either such REMIC to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney receive income from the Indenture Trustee performance of services or from assets not permitted under the REMIC Provisions to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunderbe held by each REMIC.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1999-3)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Insurer and with reasonable care, and using that degree of skill and attention that the Master exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee and the Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder. The Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-servicer to carry out its servicing and administrative duties hereunder.
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, the 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to any modification of the placing terms of liens senior to that of a Mortgage on the related Mortgaged Property only any Note not expressly prohibited hereby if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios effect of any such Mortgage Loan modification (x) will not increase be to greater than 100%; provided, further, that affect materially and adversely the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool security afforded by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitationsProperty, the Master Servicer may agree to changes in the terms timing of a Mortgage Loan at the request receipt of the Mortgagor; provided, that such changes (i) do not materially and adversely affect any payments required hereby or the interests of Class A Noteholders or the Insurer and (iiy) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate cause the terms of such arrangementsUpper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-2)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement on behalf of the Indenture Trustee Trustee, the Owners and the Certificate Insurer in accordance with Accepted Servicing Practices, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee and the Certificate Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. Without The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder
(c) Subject to clause (e) below, without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Certificate Insurer and (y) will not cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC.
(d) The Master Servicer shall have the right using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for consent may be approved by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal (which may, for this purpose, be determined at the time of any such action in a manner reasonably acceptable to the original Trustee) and the Mortgagor's debt-to-income ratio after any release does not exceed the Combined Loan-to-Value RatioRatio and debt-to-income ratio applicable to such Mortgage Loan at origination and (z) the lien priority of the related Mortgage is not adversely affected or reduced; provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity.
(e) The parties intend that each of the Lower-Tier REMIC and the Upper-Tier REMIC shall constitute a REMIC and that the affairs of each shall be conducted so as to qualify each as a REMIC. In furtherance of such intention, the Master Servicer covenants and agrees that it shall act as agent (and the Master Servicer is hereby appointed to act as agent) on behalf of each such REMIC and that in such capacity it shall: (i) use its best efforts to conduct the affairs of each such REMIC at all times that any Class of Certificates are outstanding so as to maintain the status of each such REMIC as a REMIC under the REMIC Provisions; (ii) not knowingly or intentionally take any action or omit to take any action that would cause the termination of the REMIC status of either such REMIC or that would subject the Trust to tax and (iii) exercise reasonable care not to allow either such REMIC to receive income from the performance of services or from assets not permitted under the REMIC Provisions to be held by each REMIC.
(f) The Master Servicer may in its discretion (i) waive any assumption fees, late payment charges, charges for checks returned for insufficient funds, prepayment fees, if any, or the fees which may be collected in the ordinary course of servicing the Mortgage Loans, (ii) if a Mortgagor is in default or about to be in default because or a Mortgagor's financial condition, arrange with the Mortgagor a schedule for the payment of delinquent payments due on the related Mortgage Loan; provided, however, the Master Servicer may consent shall generally not be permitted to reschedule the placing payment of a senior lien (subject to the 5% and 3% limitations described delinquent payments more than one time in Section 2.2(d) above any twelve consecutive months with respect to any Mortgagor and such modifications shall not be made in excess of 5% of the HELOC Pool aggregate of the Group I Original Balance and the HLTV Pool, respectively) if Group II Original Balance Principal Balance without the Combined Loan-to-Value Ratios prior written consent of any such Mortgage Loan will not increase to greater than 100%the Certificate Insurer; provided, furtherhowever, that the Master Servicer may only approve modifications that, if the related Mortgagor is not then delinquent (and Certificate Insurer has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval given its consent within five (5) Business Days after notice from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up Certificate Insurer shall be deemed to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the have given its consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality modification or rescheduling for payments of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trusteedelinquent payments; provided, however, that Section 4.14(a) such notice and consent shall constitute a power of attorney from not be required in the Indenture Trustee to event that the Master Servicer determines, in its sole discretion that such modification is required to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect be made prior to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14such five day period, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.iii)
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Conduit Receivables Inc)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Group I Insurer and with reasonable care, and using that degree of skill and attention that the Master exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee and the Group I Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, the Group I 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Group I Insurer and (y) will not cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC.
(d) The Master Servicer shall have the right using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal (which may, for this purpose, be determined at the time of any such action in a manner reasonably acceptable to the original Combined LoanTrustee) and the Mortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity.
(e) The parties intend that each of the Lower-Tier REMIC and the Upper-Tier REMIC shall constitute, and that the affairs of each shall be conducted so as to qualify each as a REMIC. In furtherance of such intention, the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent covenants and agrees that it shall act as agent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification is hereby appointed to act as agent) on behalf of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided each such REMIC and that in such capacity it shall: (i) new appraisals use its best efforts to conduct the affairs of each such REMIC at all times that any Class of Certificates are obtained and outstanding so as to maintain the Combined Loan-to-Value Ratios status of any each such HELOC Loans after giving effect to such increase are less than or equal to REMIC as a REMIC under the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, REMIC Provisions; (ii) not knowingly or intentionally take any action or omit to take any action that would cause the termination of the REMIC status of either such increases are consistent with REMIC or that would subject the Accepted Servicing Practices, Trust to tax and (iii) the related Mortgagor is exercise reasonable care not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans allow either such REMIC to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval receive income from the Rating Agencies and performance of services or from assets not permitted under the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up REMIC Provisions to 5% of the Mortgage Loans in either Pool be held by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practiceseach REMIC.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(ef) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fg) Without limiting the generality of the foregoing, but subject to Sections 4.13 8.13 and 4.148.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be 79 85 authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders Owners, the Group I Insurer and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a8.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 8.13 and 4.148.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gh) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(hi) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 8.9(c) and in Section 8.6(b)(ixSections 7.5(h)(i)(A) of the Indentureand 7.5(h)(ii)(B).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-1)
Master Servicer and Sub-Servicers. (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 Indenture Trustee and the Insurer and shall have full power and authority, acting alone or through one or more Sub-Servicers, 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 Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with respect to the Mortgage LoansLoans and the related Mortgaged Properties, the insurance policies Mortgage Insurance Policies and accounts Accounts related thereto and the properties subject to the Mortgages in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 Mortgage 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 an Underlying Mortgage Note a Credit Line Agreement and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note Credit Line Agreement where the terms of such an Underlying Mortgage Note Credit Line Agreement 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 Underlying Mortgage Note Credit Line Agreement and the Mortgage Loan secured by the Underlying Mortgage Note Credit Line Agreement or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 4.10 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.[reserved]
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the written consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer Sub-Servicer arrangements with any subservicer Sub-Servicer or assume the terminated Master Servicer's rights under such subservicing Sub-Servicing arrangements (with the written consent of the Insurer), which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject Subject to Sections 4.13 and 4.14, the Master Servicer Servicer, in its own name name, or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliverServicer, and in its own name, may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, Trustee and (iiiii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gf) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1999-A)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Class A-8 and Class A-9 Certificate Insurer and with reasonable care, and using that degree of skill and attention that the Master exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee and the Class A-8 and Class A-9 Certificate Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder. The Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-servicer to carry out its servicing and administrative duties hereunder.
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, the Class A-8 and Class A-9 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to any modification of the placing terms of liens senior to that of a Mortgage on the related Mortgaged Property only any Note not expressly prohibited hereby if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios effect of any such Mortgage Loan modification (x) will not increase be to greater than 100%; provided, further, that affect materially and adversely the Master Servicer may only approve modifications if security afforded by the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months)Property, the current characteristics timing of receipt of any payments required hereby or the interests of the related Mortgagor are consistent with the Accepted Servicing Practices Class A-8 and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments Class A-9 Certificate Insurer and (ivy) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does will not cause the Combined Loan-to-Value Ratios of the HELOC Loans REMIC Trust to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for fail to qualify as a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing PracticesREMIC.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1997-3)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 4.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Note Insurer and with reasonable care, and using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality .
(b) The duties of the foregoingMaster Servicer shall include collecting and posting of all payments, the Master Servicerresponding to inquiries of Mortgagors or by federal, in its own name state or the name of a Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, local government authorities with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject investigating delinquencies, reporting tax information to the Mortgages Mortgagors in accordance with the terms of this Agreement. Upon the execution its customary practices and delivery of this Agreement, accounting for collections and from time furnishing monthly and annual statements to time as may be required thereafter, the Indenture Trustee shall furnish and the Note Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer or shall follow its Sub-Servicers customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with any powers of attorney the Indenture Trustee and such other documents furnish to the Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting The Master Servicer shall have the generality right using that degree of the foregoing, skill and attention that the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and exercises with respect to the related Propertiescomparable mortgage loans that it services for itself or others, including consenting to the placement approve applications of a lien senior Mortgagors for consent to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for such approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal to and the original Combined LoanMortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practicesgovernmental entity.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.shall
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Conduit Receivables Inc)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans on behalf of the Indenture Trustee in accordance with this Agreement and the Insurer with Accepted Servicing Practices, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder. The Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-servicer to carry out its servicing and administrative duties hereunder.
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the Insurer Owners and the Indenture 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Certificate Insurer and (y) will not cause the REMIC Trust to fail to qualify as a REMIC.
(d) The Master Servicer shall have the right using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal to and the original Combined LoanMortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity.
(e) The parties intend that the REMIC Trust shall constitute, and that the affairs of REMIC Trust shall be conducted so as to qualify it as a REMIC. In furtherance of such intention, the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent covenants and agrees that it shall act as agent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment is hereby appointed to act as agent) on behalf of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided REMIC Trust and that in such capacity it shall: (i) new appraisals are obtained and use its best efforts to conduct the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios affairs of the HELOC Loans REMIC Trust at all times that any Class of Certificates are outstanding so as to maintain the status of the Cut-Off Date, REMIC Trust as a REMIC under the REMIC Provisions; (ii) such increases are consistent with not knowingly or intentionally take any action or omit to take any action that would cause the Accepted Servicing Practices, termination of the REMIC status of REMIC Trust or that would subject the Trust to tax and (iii) exercise reasonable care not to allow the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up REMIC Trust to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval receive income from the Rating Agencies and performance of services or from assets not permitted under the Insurer solicit Mortgagors for REMIC Provisions to be held by a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing PracticesREMIC.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(ef) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fg) Without limiting the generality of the foregoing, but subject to Sections 4.13 8.13 and 4.148.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders Owners and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a8.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 8.13 and 4.148.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gh) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(hi) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 8.9(c) and in Section 8.6(b)(ix7.5(c)(v)(C) of the Indenturehereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1996-4)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Certificate Insurer and with reasonable care, and using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for 71 79 collections and furnishing monthly and annual statements to the Trustee and the Certificate Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder. The Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-servicer to carry out its servicing and administrative duties hereunder.
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Certificate Insurer and (y) will not cause the REMIC Trust to fail to qualify as a REMIC.
(d) The Master Servicer shall have the right using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal (which may, for this purpose, be determined at the time of any such action in a manner reasonably acceptable to the original Combined LoanTrustee) and the Mortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangementsgovernmental entity.
(e) The Master Servicer mayparties intend that the REMIC Trust shall constitute, and is hereby authorized to, perform any that the affairs of its servicing responsibilities with respect REMIC Trust shall be conducted so as to all or certain qualify it as a REMIC. In furtherance of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14intention, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized covenants and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders agrees that it shall act as agent (and the Indenture Trustee or any of them, (iMaster Servicer is hereby appointed to act as agent) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, REMIC Trust and that in such capacity it shall: (i) use its best efforts to conduct the affairs of the REMIC Trust at all times that any Class of Certificates are outstanding so as to maintain the status of the REMIC Trust as a REMIC under the REMIC Provisions; (ii) not knowingly or intentionally take any action or omit to take any action that would cause the termination of the REMIC status of REMIC Trust or that would subject the Trust to tax and (iii) exercise reasonable care not to hold title allow the REMIC Trust to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney receive income from the Indenture Trustee performance of services or from assets not permitted under the REMIC Provisions to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunderbe held by a REMIC.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-3)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 4.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Note Insurer and with reasonable care, and using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality .
(b) The duties of the foregoingMaster Servicer shall include collecting and posting of all payments, the Master Servicerresponding to inquiries of Mortgagors or by federal, in its own name state or the name of a Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, local government authorities with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject investigating delinquencies, reporting tax information to the Mortgages Mortgagors in accordance with the terms of this Agreement. Upon the execution its customary practices and delivery of this Agreement, accounting for collections and from time furnishing monthly and annual statements to time as may be required thereafter, the Indenture Trustee shall furnish and the Note Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer or shall follow its Sub-Servicers customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with any powers of attorney the Indenture Trustee and such other documents furnish to the Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting The Master Servicer shall have the generality right using that degree of the foregoing, skill and attention that the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and exercises with respect to the related Propertiescomparable mortgage loans that it services for itself or others, including consenting to the placement approve applications of a lien senior Mortgagors for consent to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for such approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal to and the original Combined LoanMortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practicesgovernmental entity.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fe) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be 29 34 authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders B Noteholders, the Note Insurer and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, (iii) to hold title to any Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee, and (iiiiv) to hold title consent to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf modification of the Indenture Trusteeterms of any Note not expressly prohibited hereby if the effect of any such modification will not be to affect materially and adversely the security afforded by the related Property and the timing of the receipt of payments required hereby or the interests of the Note Insurer; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gf) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust Issuer or (ii) assert jurisdiction over the TrustIssuer.
(hg) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 4.9(c) and in Section 8.6(b)(ix8.7(b)(xvii) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Mortgage Loan Trust 1998-4c)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 4.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement and on behalf of the Indenture Trustee and the Note Insurer and with reasonable care, and using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality .
(b) The duties of the foregoingMaster Servicer shall include collecting and posting of all payments, the Master Servicerresponding to inquiries of Mortgagors or by federal, in its own name state or the name of a Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, local government authorities with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject investigating delinquencies, reporting tax information to the Mortgages Mortgagors in accordance with the terms of this Agreement. Upon the execution its customary practices and delivery of this Agreement, accounting for collections and from time furnishing monthly and annual statements to time as may be required thereafter, the Indenture Trustee shall furnish and the Note Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer or shall follow its Sub-Servicers customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with any powers of attorney the Indenture Trustee and such other documents furnish to the Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting The Master Servicer shall have the generality right using that degree of the foregoing, skill and attention that the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and exercises with respect to the related Propertiescomparable mortgage loans that it services for itself or others, including consenting to the placement approve applications of a lien senior Mortgagors for consent to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for such approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal to and the original Combined LoanMortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent foregoing requirements (and has not been delinquent during the prior 12 monthsx), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 monthsy) and (ivz) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account apply to any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes situation described in the terms of this paragraph if such situation results from any condemnation or easement activity by a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practicesgovernmental entity.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fe) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders C Noteholders, the Note Insurer and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, (iii) to hold title to any Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee, and (iiiiv) to hold title consent to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf modification of the Indenture Trusteeterms of any Note not expressly prohibited hereby if the effect of any such modification will not be to affect materially and adversely the security afforded by the related Property and the timing of the receipt of payments required hereby or the interests of the Note Insurer; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gf) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust Issuer or (ii) assert jurisdiction over the TrustIssuer.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Mortgage Loan Trust 1998-4c)
Master Servicer and Sub-Servicers. (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 Indenture Trustee and the Insurer and shall have full power and authority, acting alone or through one or more Sub-Servicers, 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 Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Master Servicer and Sub-Servicers. (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 Indenture Trustee and the Insurer and shall have full power and authority, acting alone or through one or more Sub-Servicers, 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 Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note a Credit Line Agreement and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note Credit Line Agreement where the terms of such an Underlying Mortgage Note Credit Line Agreement 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.for
Appears in 1 contract
Samples: Sale and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1998-A)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans in accordance with this Agreement on behalf of the Indenture Trustee Trustee, the Owners and the Certificate Insurer in accordance with Accepted Servicing Practices, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee and the Certificate Insurer, as applicable, with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. Without The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder
(c) Subject to clause (e) below, without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A NoteholdersOwners, 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 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) Without limiting the generality of the foregoing, but subject to Sections 4.13 and 4.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 and 4.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 and in Section 8.6(b)(ix) of the Indenture.with
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 3.03, 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 Indenture Trustee and in the Insurer best interests of and shall have full power and authority, acting alone or through one or more Sub-Servicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting for the generality benefit of the foregoing, Certificateholders and the Certificate Insurer (as determined by the Master Servicer, Servicer in its own name or the name of a Sub-Servicer, may, and is hereby authorized and empowered by the Indenture Trustee to, execute and deliver, on behalf of itself, the Class A Noteholders, the 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 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 reasonable judgment) in accordance with the terms of this Agreement. Upon Agreement and the execution respective Mortgage Loans and, to the extent consistent with such terms, in the same manner in which it services and delivery administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of this Agreementpractice of prudent mortgage lenders and loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Master Servicer, and from time to time as may be required thereafter, the Indenture Trustee shall furnish any Sub-Servicer or any Affiliate of the Master Servicer or its any Sub-Servicers Servicer may have with the related Mortgagor;
(ii) ownership of any powers of attorney and such other documents 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 Certificate by the Master Servicer pursuant to this Agreement. Costs incurred by the or any Master Servicer in effectuating the timely payment of taxes and assessments on the property securing an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.Affiliate;
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting to the placement of a lien senior to that of any Mortgage on the related Mortgaged Property; provided, that,
(i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust and, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) the Mortgage relating to such Mortgage Loan was in a second lien position as of the related Cut-Off Date and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if the Combined Loan-to-Value Ratio is less than or equal to the original Combined Loan-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if the Combined Loan-to-Value Ratios of any such Mortgage Loan will not increase to greater than 100%; provided, further, that the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided that (i) new appraisals are obtained and the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios of the HELOC Loans as of the Cut-Off Date, (ii) such increases are consistent with the Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and Master Servicer's obligation to make Monthly Advances or Servicing Advances; or
(iv) the Master Servicer receives verbal verification of employment of the related MortgagorServicer's or any Sub-Servicer's right to receive compensation for its services hereunder or with respect to any particular transaction. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase The standards set forth in the Credit Limit does not cause immediately preceding sentence shall be referred to herein as the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted "Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval from the Rating Agencies and the Insurer solicit Mortgagors for a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductionsStandard". Subject to the above limitationsSection 3.03 hereof, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing Practices.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(e) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(f) . Without limiting the generality of the foregoing, but subject to Sections 4.13 3.15 and 4.143.16, the Master Servicer shall direct the Trustee in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee writing to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders and the Indenture Trustee or any of them, deliver (i) 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 and with respect to the Mortgaged Properties, and (ii) and documents to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property in the name of the Trustee on behalf of the Indenture TrusteeTrust Fund; PROVIDED, HOWEVER, that to the extent any instrument described in clause (i) preceding would be delivered by the Master Servicer outside of its usual procedures for mortgage loans held in its own portfolio, the Master Servicer shall, prior to directing the Trustee to execute and deliver such instrument, obtain the prior written consent of the Certificate Insurer, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; providedprovided further, however, that Section 4.14(a3.16(a) shall constitute a power of attorney an authorization from the Indenture Trustee to the Master Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). The Trustee shall, at the written direction of the Master Servicer, execute any documentation furnished to it by the Master Servicer for recordation by the Master Servicer in the appropriate jurisdictions as shall by necessary to effectuate the foregoing. Subject to Sections 4.13 3.14 and 4.143.15, the Indenture Trustee shall furnish the Master Servicer and execute any Sub-Servicer with any powers of attorney authorizations and other documents as the Master Servicer or such Sub-Servicer shall reasonably request that are furnished to the Trustee to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(g) . In accordance with the standards of the preceding paragraph, the Master Servicer shall advance or cause to be advanced funds as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances shall be reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11. Any cost incurred by the Master Servicer or by Sub-Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions to Certificateholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. The Master Servicer shall give prompt notice to the Indenture Trustee and the Certificate Insurer of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust Fund or (ii) assert jurisdiction over the Trust.
(h) Trust Fund. Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 Sections 3.11 and in Section 8.6(b)(ix3.23(d) of the Indenturehereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Master Servicer and Sub-Servicers. (a) Advanta Mortgage Corp. USA agrees to act Acting directly or through one or more Sub-Servicers as provided in Section 8.3, the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer Servicer, as master servicer, shall service and administer the Mortgage Loans on behalf in accordance with this Agreement and with reasonable care, and using that degree of skill and attention that the Indenture Trustee and the Insurer Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, and shall have full power and authority, acting alone or through one or more Sub-Servicersalone, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirable.
(b) The duties of the Master Servicer shall include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its customary practices and accounting for collections and furnishing monthly and annual statements to the Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Master Servicer shall follow its customary standards, policies and procedures in performing its duties as Master Servicer. The Master Servicer shall cooperate with the Trustee and furnish to the Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Trustee to perform its tax reporting duties hereunder. The Trustee shall furnish the Master Servicer or any Sub-servicer with any powers of attorney and other documents necessary or appropriate to enable the Master Servicer or any Sub-servicer to carry out its servicing and administrative duties hereunder.
(c) Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Sub-Servicer, mayServicer (i) shall continue, and is hereby authorized and empowered by the Indenture Trustee toTrustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the Insurer Owners and the Indenture 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 in accordance with the terms of this Agreement. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Indenture Trustee shall furnish the Master Servicer or its Sub-Servicers with any powers of attorney and such other documents 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 an Underlying Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Underlying Mortgage Note where the terms of such an Underlying 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 Underlying Mortgage Note and the Mortgage Loan secured by the Underlying Mortgage Note or distributions to be made to Class A Noteholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 4.9 and 4.13.
(c) Without limiting the generality of the foregoing, the Master Servicer shall continue, and is hereby authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders, the 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 and all other comparable instruments, with 52 61 respect to the Mortgage Loans and with respect to the related Properties, including consenting ; (ii) may consent to any modification of the placement of a lien senior to that terms of any Mortgage on Note not expressly prohibited hereby if the effect of any such modification (x) will not be to affect materially and adversely the security afforded by the related Mortgaged Property; provided, that,the timing of receipt of any payments required hereby or the interests of the Certificate Insurer and (y) will not cause the REMIC Trust to fail to qualify as a REMIC.
(d) The Master Servicer shall have the right using that degree of skill and attention that the Master Servicer exercises with respect to comparable mortgage loans that it services for itself or others, to approve applications of Mortgagors for consent to (i) such Mortgage succeeded to a first lien position after the related Mortgage Loan was conveyed to the Trust andpartial releases of Mortgages, immediately following the placement of such senior lien, such Mortgage is in a second lien position and the outstanding principal amount of the mortgage loan secured by such subsequent senior lien is no greater than the outstanding principal amount of the senior mortgage loan secured by the Mortgaged Property as of the date the related Mortgage Loan was originated; or
(ii) alterations to Properties and (iii) removal, demolition or division of Properties. No application for approval shall be considered by the Mortgage relating to such Mortgage Loan was in a second lien position as Master Servicer unless: (x) the provisions of the related Cut-Off Date Note and the new senior lien secures a mortgage loan that refinances an existing first mortgage loan and the outstanding principal amount and interest rate of the replacement first mortgage loan immediately following such refinancing is not greater than the outstanding principal amount and interest rate of such existing first mortgage loan at the date of origination of such Mortgage Loan. provided, further, that such senior lien does not secure a note that provides for negative amortization. Notwithstanding the foregoing, the Master Servicer may consent to the placing of liens senior to that of a Mortgage on the related Mortgaged Property only if have been complied with; (y) the Combined Loan-to-Value Ratio is less than or equal (which may, for this purpose, be determined at the time of any such action in a manner reasonably acceptable to the original Combined LoanCertificate Insurer) and the Mortgagor's debt-to-Value Ratio; provided, however, the Master Servicer may consent to the placing of a senior lien (subject to the 5% and 3% limitations described in Section 2.2(d) above with respect to the HELOC Pool and the HLTV Pool, respectively) if income ratio after any release does not exceed the Combined Loan-to-Value Ratios of any Ratio and debt-to-income ratio applicable to such Mortgage Loan will at origination and (z) the lien priority of the related Mortgage is not increase to greater than 100%adversely affected; provided, furtherhowever, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity.
(e) The parties intend that the REMIC Trust shall constitute, and that the affairs of REMIC Trust shall be conducted so as to qualify it as a REMIC. In furtherance of such intention, the Master Servicer may only approve modifications if the related Mortgagor is not then delinquent covenants and agrees that it shall act as agent (and has not been delinquent during the prior 12 months), the current characteristics of the related Mortgagor are consistent with the Accepted Servicing Practices and the Master Servicer receives verbal verification of employment is hereby appointed to act as agent) on behalf of the related Mortgagor. At the written direction of the related Originator, the Master Servicer may also, without prior approval from the Rating Agencies or the Insurer, increase the Credit Limits on HELOC Loans provided REMIC Trust and that in such capacity it shall: (i) new appraisals are obtained and use its best efforts to conduct the Combined Loan-to-Value Ratios of any such HELOC Loans after giving effect to such increase are less than or equal to the Combined Loan-to-Value Ratios affairs of the HELOC Loans REMIC Trust at all times that any Class of Certificates are outstanding so as to maintain the status of the Cut-Off Date, REMIC Trust as a REMIC under the REMIC Provisions; (ii) such increases are consistent with not knowingly or intentionally take any action or omit to take any action that would cause the Accepted Servicing Practices, termination of the REMIC status of REMIC Trust or that would subject the Trust to tax and (iii) exercise reasonable care not to allow the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and has made timely payments and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. In addition, the Master Servicer, at the written direction of the Originator, may increase the Credit Limits on HELOC Loans having aggregate balances of up REMIC Trust to 5% of the HELOC Pool Balance, without obtaining new appraisals provided that (i) the increase in the Credit Limit does not cause the Combined Loan-to-Value Ratios of the HELOC Loans to exceed 100%, (ii) 53 62 the increase is consistent with Accepted Servicing Practices, (iii) the related Mortgagor is not then delinquent (and has not been delinquent during the prior 12 months) and (iv) the Master Servicer receives verbal verification of employment of the related Mortgagor. Furthermore, the Master Servicer or the related Originator may, without prior approval receive income from the Rating Agencies and 77 performance of services or from assets not permitted under the Insurer solicit Mortgagors for REMIC Provisions to be held by a reduction in Loan Rates of no more than 0.50%; provided that the Master Servicer can only reduce such Loan Rates on up to 5% of the Mortgage Loans in either Pool by the related Pool Balance. Any such solicitations shall not result in a reduction in the weighted average Loan Rate of the Mortgage Loans in the related pool by more than 2.5 basis points taking into account any such prior reductions. Subject to the above limitations, the Master Servicer may agree to changes in the terms of a Mortgage Loan at the request of the Mortgagor; provided, that such changes (i) do not materially and adversely affect the interests of Class A Noteholders or the Insurer and (ii) are consistent with Accepted Servicing PracticesREMIC.
(d) The relationship of the Master Servicer (and of any successor to the Master Servicer as servicer under this Agreement) to the Indenture Trustee 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. In the event that the rights, duties and obligations of the Master Servicer are terminated hereunder, any successor to the Master Servicer may (with the consent of the Insurer), to the extent permitted by applicable law, terminate the existing subservicer arrangements with any subservicer or assume the terminated Master Servicer's rights under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements.
(ef) The Master Servicer may, and is hereby authorized to, perform any of its servicing responsibilities with respect to all or certain of the Mortgage Loans through a Sub-Servicer as it may from time to time designate, but no such designation of a Sub-Servicer shall serve to release the Master Servicer from any of its obligations under this Agreement. Such Sub-Servicer shall have all the rights and powers of the Master Servicer with respect to such Mortgage Loans under this Agreement.
(fg) Without limiting the generality of the foregoing, but subject to Sections 4.13 8.13 and 4.148.14, the Master Servicer in its own name or in the name of a Sub-Servicer may be authorized and empowered pursuant to a power of attorney executed and delivered by the Indenture Trustee to execute and deliver, and may be authorized and empowered by the Indenture Trustee, to execute and deliver, on behalf of itself, the Class A Noteholders Owners and the Indenture Trustee or any of them, (i) 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 and with respect to the Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect owner ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in 54 63 lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 4.14(a8.14(a) shall constitute a power of attorney from the Indenture Trustee to the Master Servicer or any Sub-servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 4.13 8.13 and 4.148.14, the Indenture Trustee shall furnish the Master Servicer and any Sub-Servicer servicer with any powers of attorney and other documents as the Master Servicer or such Sub-Servicer shall reasonably request to enable the Master Servicer and such Sub-Servicer to carry out their respective servicing and administrative duties hereunder.
(gh) The Master Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Master Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust.
(hi) Servicing Advances incurred by the Master Servicer or any Sub-Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Master Servicer or such Sub-Servicer to the extent described in Section 4.9 8.9(c) and in Section 8.6(b)(ix7.5(c)(v)(C) of the Indenturehereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1996-3)
