Common use of Monthly Advances by Seller Clause in Contracts

Monthly Advances by Seller. The Servicer shall not be required to make Monthly Advances. 25. The last sentence of Section 4.05(i)(A) is hereby amended to read as follows: Such report shall be addressed to the Purchaser, the Master Servicer and such Depositor and signed by an authorized officer of the Servicer, and shall address each of the Servicing Criteria specified on Exhibit 8 hereto; 26. The parties hereto acknowledge that Section 5.01 (Provision of Information) and Section 5.02 (Financial Statements; Servicing Facilities) are inapplicable to this Agreement. 27. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of Seller and Others) are replaced by the following: The Seller shall indemnify the Trust Fund, the Trustee and the Master Servicer and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that any of such parties may sustain in any way related to the failure of the Seller to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement. The Seller immediately shall notify Xxxxxx Brothers Bank, FSB, the Master Servicer and the Trustee or any other relevant party if a claim is made by a third party with respect to this Agreement or the Mortgage Loans, assume (with the prior written consent of the indemnified party) the defense of any such claim and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or any of such parties in respect of such claim. The Seller shall follow any written instructions received from the Trustee in connection with such claim. The Trustee, from the assets of the Trust Fund, promptly shall reimburse the Seller for all amounts advanced by it pursuant to the preceding sentence except when the claim is in any way relates to the failure of the Seller to service and administer the Mortgage Loans in strict compliance with the terms of this Agreement. The Trust Fund shall indemnify the Seller and hold it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that the Seller may sustain in any way related to the failure of the Trustee or the Master Servicer to perform its duties in compliance with the terms of this Agreement. In the event a dispute arises between an indemnified party and the Seller with respect to any of the rights and obligations of the parties pursuant to this Agreement and such dispute is adjudicated in a court of law, by an arbitration panel or any other judicial process, then the losing party shall indemnify and reimburse the winning party for all attorney’s fees and other costs and expenses related to the adjudication of said dispute. 28. The first paragraph of Section 8.03 (Limitation on Resignation and Assignment by Seller) is hereby amended in its entirety to read as follows: The Seller shall neither assign this Agreement or the servicing hereunder or delegate its rights or duties hereunder or any portion hereof (to other than a third party in the case of outsourcing routine tasks such as taxes, insurance and property inspection, in which case the Seller shall be fully liable for such tasks as if the Seller performed them itself) or sell or otherwise dispose of all or substantially all of its property or assets without the prior written consent of the Trustee and the Master Servicer, which consent shall be granted or withheld in the reasonable discretion of such parties; provided, however, that the Seller may assign its rights and obligations hereunder without prior written consent of the Trustee and the Master Servicer to any entity that is directly owned or controlled by the Seller, and the Seller guarantees the performance of such entity hereunder. In the event of such assignment by the Seller, the Seller shall provide the Trustee and the Master Servicer with a written statement guaranteeing the successor entity’s performance of the Seller’s obligations under the Agreement. 29. Section 10.09(a)(vii) is hereby amended by replacing “thereto identified by the related Depositor of a type described in Item 1119 of Regulation AB” with the parties listed on Exhibit F hereto. 30. A new Section 10.10 (Restated Representations and Warranties of the Seller) is hereby added to read. It is understood and agreed that the representations and warranties set forth in this Article X are hereby restated as of the Closing Date and shall survive the engagement of the Seller to perform the servicing responsibilities hereunder and the delivery of the Servicing Files to the Seller and shall inure to the benefit of the Trustee, the Trust Fund and the Master Servicer. Upon discovery by any of the Seller, the Master Servicer or the Trustee of a breach of any of the foregoing representations and warranties which materially and adversely affects the ability of the Seller to perform its duties and obligations under this Agreement or otherwise materially and adversely affects the value of the Mortgage Loans, the Mortgaged Property or the priority of the security interest on such Mortgaged Property or the interest of the Trustee or the Trust Fund, the party discovering such breach shall give prompt written notice to the other parties. Within 60 days after the earlier of either discovery by or notice to the Seller of any breach of a representation or warranty set forth in this Article X that materially and adversely affects the ability of the Seller to perform its duties and obligations under this Agreement or otherwise materially and adversely affects the value of the Loans, the Mortgaged Property or the priority of the security interest on such Mortgaged Property, the Seller shall use its Best Efforts promptly to cure such breach in all material respects and, if such breach cannot be cured, the Seller shall, at the Master Servicer’s option, assign the Seller’s rights and obligations under this Agreement (or respecting the affected Mortgage Loans) to a successor servicer selected by the Master Servicer with the prior consent and approval of the Trustee. Such assignment shall be made in accordance with Article VI. In addition, the Seller shall indemnify (from its own funds) the Trustee, the Trust Fund and Master Servicer and hold each of them harmless against any costs resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of the Seller’s representations and warranties contained in this Agreement. It is understood and agreed that the remedies set forth in this Article X constitute the sole remedies of the Master Servicer, the Trust Fund and the Trustee respecting a breach of the foregoing representations and warranties. Any cause of action against the Seller relating to or arising out of the breach of any representations and warranties made in this Article X shall accrue upon (i) discovery of such breach by the Seller or notice thereof by the Trustee or Master Servicer to the Seller, (ii) failure by the Seller to cure such breach within the applicable cure period, and (iii) demand upon the Seller by the Trustee or the Master Servicer for compliance with this Agreement. 31. Section 11.01 (Events of Default) is hereby amended as follows: (a) Amending Subsection 11.01(f) in its entirety to read as follows: “the Seller at any time is neither a Xxxxxx Mae or Xxxxxxx Mac approved servicer, and the Master Servicer has not terminated the rights and obligations of the Seller under this Agreement and replaced the Seller with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the absence of such approval; or”. (b) Replacing the last paragraph thereof with the following: Upon receipt by the Seller of such written notice, all authority and power of the Seller under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass to and be vested in a successor Seller appointed by the Xxxxxx Brothers Bank, FSB and the Master Servicer. Upon written request from the Master Servicer, the Seller shall prepare, execute and deliver to the successor entity designated by the Seller any and all documents and other instruments, place in such successor’s possession all Servicing Files, and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including but not limited to the transfer and endorsement or assignment of the Mortgage Loans and related documents, at the Seller’s sole expense. The Seller shall cooperate with Xxxxxx Brothers Bank, FSB and the Master Servicer and such successor in effecting the termination of the Seller’s responsibilities and rights hereunder, including without limitation, the transfer to such successor for administration by it of all cash amounts which shall at the time be credited by the Seller to the Custodial Account or Escrow Account or thereafter received with respect to the Mortgage Loans. 32. The parties hereto acknowledge that the word “Purchaser” in Section 11.02 (Waiver of Defaults) shall refer to the “Master Servicer”. 33. A new Section 11.03 (Termination Without Cause) is hereby added to read as follows:

Monthly Advances by Seller. The Servicer shall not be required to make Monthly Advances. 25. The last sentence of Section 4.05(i)(A) is hereby amended to read as follows: Such report shall be addressed to the Purchaser, the Master Servicer and such Depositor and signed by an authorized officer of the Servicer, and shall address each of the Servicing Criteria specified on Exhibit 8 hereto; 26. The parties hereto acknowledge that Section 5.01 (Provision of Information) and Section 5.02 (Financial Statements; Servicing Facilities) are inapplicable to this Agreement. 27. Sections 8.01 (Indemnification) and 8.02 (Limitation on Liability of Seller and Others) are replaced by the following: The Seller shall indemnify the Trust Fund, the Trustee and the Master Servicer and hold each of them harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that any of such parties may sustain in any way related to the failure of the Seller to perform its duties and service the Mortgage Loans in strict compliance with the terms of this Agreement. The Seller immediately shall notify Xxxxxx Brothers Bank, FSB, the Master Servicer and the Trustee or any other relevant party if a claim is made by a third party with respect to this Agreement or the Mortgage Loans, assume (with the prior written consent of the indemnified party) the defense of any such claim and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or any of such parties in respect of such claim. The Seller shall follow any written instructions received from the Trustee in connection with such claim. The Trustee, from the assets of the Trust Fund, promptly shall reimburse the Seller for all amounts advanced by it pursuant to the preceding sentence except when the claim is in any way relates to the failure of the Seller to service and administer the Mortgage Loans in strict compliance with the terms of this Agreement. The Trust Fund shall indemnify the Seller and hold it harmless against any and all claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that the Seller may sustain in any way related to the failure of the Trustee or the Master Servicer to perform its duties in compliance with the terms of this Agreement. In the event a dispute arises between an indemnified party and the Seller with respect to any of the rights and obligations of the parties pursuant to this Agreement and such dispute is adjudicated in a court of law, by an arbitration panel or any other judicial process, then the losing party shall indemnify and reimburse the winning party for all attorney’s fees and other costs and expenses related to the adjudication of said dispute. 28. The first paragraph of Section 8.03 (Limitation on Resignation and Assignment by Seller) is hereby amended in its entirety to read as follows: The Seller shall neither assign this Agreement or the servicing hereunder or delegate its rights or duties hereunder or any portion hereof (to other than a third party in the case of outsourcing routine tasks such as taxes, insurance and property inspection, in which case the Seller shall be fully liable for such tasks as if the Seller performed them itself) or sell or otherwise dispose of all or substantially all of its property or assets without the prior written consent of the Trustee and the Master Servicer, which consent shall be granted or withheld in the reasonable discretion of such parties; provided, however, that the Seller may assign its rights and obligations hereunder without prior written consent of the Trustee and the Master Servicer to any entity that is directly owned or controlled by the Seller, and the Seller guarantees the performance of such entity hereunder. In the event of such assignment by the Seller, the Seller shall provide the Trustee and the Master Servicer with a written statement guaranteeing the successor entity’s performance of the Seller’s obligations under the Agreement. 29. Section 10.09(a)(vii) is hereby amended by replacing “thereto identified by the related Depositor of a type described in Item 1119 of Regulation ABAB and any party” with the parties listed on Exhibit F hereto. 30. A new Section 10.10 (Restated Representations and Warranties of the Seller) is hereby added to read. It is understood and agreed that the representations and warranties set forth in this Article X are hereby restated as of the Closing Date and shall survive the engagement of the Seller to perform the servicing responsibilities hereunder and the delivery of the Servicing Files to the Seller and shall inure to the benefit of the Trustee, the Trust Fund and the Master Servicer. Upon discovery by any of the Seller, the Master Servicer or the Trustee of a breach of any of the foregoing representations and warranties which materially and adversely affects the ability of the Seller to perform its duties and obligations under this Agreement or otherwise materially and adversely affects the value of the Mortgage Loans, the Mortgaged Property or the priority of the security interest on such Mortgaged Property or the interest of the Trustee or the Trust Fund, the party discovering such breach shall give prompt written notice to the other parties. Within 60 days after the earlier of either discovery by or notice to the Seller of any breach of a representation or warranty set forth in this Article X that materially and adversely affects the ability of the Seller to perform its duties and obligations under this Agreement or otherwise materially and adversely affects the value of the Loans, the Mortgaged Property or the priority of the security interest on such Mortgaged Property, the Seller shall use its Best Efforts promptly to cure such breach in all material respects and, if such breach cannot be cured, the Seller shall, at the Master Servicer’s option, assign the Seller’s rights and obligations under this Agreement (or respecting the affected Mortgage Loans) to a successor servicer selected by the Master Servicer with the prior consent and approval of the Trustee. Such assignment shall be made in accordance with Article VI. In addition, the Seller shall indemnify (from its own funds) the Trustee, the Trust Fund and Master Servicer and hold each of them harmless against any costs resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of the Seller’s representations and warranties contained in this Agreement. It is understood and agreed that the remedies set forth in this Article X constitute the sole remedies of the Master Servicer, the Trust Fund and the Trustee respecting a breach of the foregoing representations and warranties. Any cause of action against the Seller relating to or arising out of the breach of any representations and warranties made in this Article X shall accrue upon (i) discovery of such breach by the Seller or notice thereof by the Trustee or Master Servicer to the Seller, (ii) failure by the Seller to cure such breach within the applicable cure period, and (iii) demand upon the Seller by the Trustee or the Master Servicer for compliance with this Agreement. 31. Section 11.01 (Events of Default) is hereby amended as follows: (a) Amending Subsection 11.01(f) in its entirety to read as follows: “the Seller at any time is neither a Xxxxxx Mae or Xxxxxxx Mac approved servicer, and the Master Servicer has not terminated the rights and obligations of the Seller under this Agreement and replaced the Seller with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days of the absence of such approval; or”. (b) Replacing the last paragraph thereof with the following: Upon receipt by the Seller of such written notice, all authority and power of the Seller under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass to and be vested in a successor Seller appointed by the Xxxxxx Brothers Bank, FSB and the Master Servicer. Upon written request from the Master Servicer, the Seller shall prepare, execute and deliver to the successor entity designated by the Seller any and all documents and other instruments, place in such successor’s possession all Servicing Files, and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including but not limited to the transfer and endorsement or assignment of the Mortgage Loans and related documents, at the Seller’s sole expense. The Seller shall cooperate with Xxxxxx Brothers Bank, FSB and the Master Servicer and such successor in effecting the termination of the Seller’s responsibilities and rights hereunder, including without limitation, the transfer to such successor for administration by it of all cash amounts which shall at the time be credited by the Seller to the Custodial Account or Escrow Account or thereafter received with respect to the Mortgage Loans. 32. The parties hereto acknowledge that the word “Purchaser” in Section 11.02 (Waiver of Defaults) shall refer to the “Master Servicer”. 33. A new Section 11.03 (Termination Without Cause) is hereby added to read as follows: