Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to: (i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor; (ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer; (iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or (iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 8 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series 2006-He7), Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series AMQ 2007-He2), Pooling and Servicing Agreement (Asset Backed Securities Corp Home Equity Loan Trust, Series RFC 2007-He1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of the Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Master Agreement or Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer’s certificate delivered by the Trustee to the Trust Administrator, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of the Servicer, shall enforce the obligation of the Originator under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against the Originator. Notwithstanding the foregoing, to the extent that the Trustee and the Originator are the same entity, the Trust Administrator shall enforce the obligations of the Originator under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe3), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe3)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans Loans, as a servicer, on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. In addition, the Servicer shall service the loans in accordance with the applicable requirements of the Servicing Criteria. Notwithstanding anything to the contrary contained in this Agreement, the Servicer shall have no obligations with respect to any Mortgage Loans subject to this Agreement until from and after the Servicing Transfer Date. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing DatePromptly upon request, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (except for a reduction of interest or principal payments resulting from the application of the Relief Act) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). The Servicer shall maintain records, prepared by a Servicing Officer, of each Final Recovery Determination. Any such Charged-off Mortgage Loan shall be treated as a liquidated Liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Jpmac 2006-Wmc3), Pooling and Servicing Agreement (Jpmac 2006-Nc2), Pooling and Servicing Agreement (Jpmac 2006-Rm1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the The Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 6 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass Through Certificates Series 2003-He6), Pooling and Servicing Agreement (Asset Backed Pass Through Certificates Series 2003-He6), Pooling and Servicing Agreement (Home Equity Loan Trust Series 2003-He3)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (B) such waiver is made in connection with a refinancing of the related Mortgage Loan unrelated to a default or a reasonably foreseeable default where (x) the related Mortgagor has stated to the Servicer or an applicable Sub-Servicer an intention to refinance the related Mortgage Loan and (y) the Servicer has concluded in its reasonable judgment that the waiver of such Prepayment Charge would induce such mortgagor to refinance with the Servicer; provided, however, that the Servicer shall waive no more than 5.00% of the Prepayment Charges (by number of Prepayment Charges) set forth on the Prepayment Charge Schedule in accordance with clause (ii)(B) above. If a Prepayment Charge is waived as permitted by meeting the standards described in clauses (i) and (ii)(B) above, then the Servicer is required to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account together with and at the time that the amount prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Notwithstanding any other provisions of this Agreement, any payments made by the Servicer in respect of any waived Prepayment Charges pursuant to clauses (i) and (ii)(B) above shall be deemed to be paid outside of the Trust Fund. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-2), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-4), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Cp1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans Loans, as a servicer, on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. In addition, the Servicer shall service the loans in accordance with the applicable requirements of the Servicing Criteria. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing DatePromptly upon request, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (except for a reduction of interest or principal payments resulting from the application of the Relief Act) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). The Servicer shall maintain records, prepared by a Servicing Officer, of each Final Recovery Determination. Any such Charged-off Mortgage Loan shall be treated as a liquidated Liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 5 contracts
Samples: Pooling and Servicing Agreement (Jpmac 2006-He3), Pooling and Servicing Agreement (Jpmac 2006-Ch2), Pooling and Servicing Agreement (Jpmac 2006-Ch1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Certificateholders, the Certificate Insurer and the Trust FundTrustee, and upon notice to the Trustee and the Certificateholders, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the servicing standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advanceparagraphs, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and also not permit extensions beyond the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementFinal Distribution Date.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L3), Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L3), Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable non recoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He5), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2005-He1), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2005-He2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders Noteholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Note by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) such waiver is in accordance with the Servicer’s internal policies. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Indenture Trustee’s rights under the Master Agreement including the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. If the Servicer makes a good faith determination, as evidenced by an Officer’s Certificate delivered by the Servicer to the Indenture Trustee, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Indenture Trustee of such failure, and the Indenture Trustee shall enforce the obligation of the Originator under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iv) above, then the Servicer shall deposit the amount of such waived Prepayment Charge in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Trust, is hereby authorized and empowered by the Indenture Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders Trust, the Issuer, the Noteholders and the Trust FundIndenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Indenture Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansNoteholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Indenture Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any limited powers of attorney in the form of Exhibit F hereto and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney submitted to carry out such duties including a power of attorney the Indenture Trustee for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholdersexecution. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney and shall be indemnified by the Servicer (from its own funds without any right of reimbursement from the Collection Account), for any costs, liabilities or expenses incurred by the Indenture Trustee in connection with the use or misuse of such powers of attorney. The Servicer further is hereby authorized and empowered, on behalf of the Noteholders and the Indenture Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Indenture Trustee and the Noteholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Indenture Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions payments to CertificateholdersNoteholders, be added to the unpaid principal balance Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.01) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or Loan, (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicerunless, in its sole discretionany such case, may charge off such Mortgage Loan if it has made a Final Recovery Determination as provided in good faith with respect thereto (each such Mortgage LoanSection 3.07, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances the Mortgagor is in default with respect to any Charged-off the Mortgage Loan and or such default is, in the judgment of the Servicer, reasonably foreseeable). In addition, neither the Servicer shall not nor the Indenture Trustee shall, under any circumstance, be entitled permitted to the Servicing Fee sell any Mortgage Loan (other than with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account exercise of an optional purchase pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating 3.16(c) hereof or an optional redemption pursuant to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf Section 8.07 of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementIndenture).
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing DatePromptly upon request, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp 2005-Opt2), Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp 2005-Opt2), Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-Opt1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) Trust and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable non recoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp), Pooling and Servicing Agreement (Asset Backed Securities Corp), Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (iii) the collection of such Prepayment Charge would be in violation of applicable laws. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Trustee’s rights under the Mortgage Loan Purchase Agreement including the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Servicer makes a good faith determination that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trustee of such failure, and the Trustee, with the cooperation of the Servicer, shall enforce the obligation of the Seller under the Mortgage Loan Purchase Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If the Seller fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee, the Servicer and the Depositor shall consult on further actions to be taken against the Seller. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of Subject to Section 3.17, on the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to or affect the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated notify the Servicer of any such claim as a liquidated Mortgage Loansoon as practicable after receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to in all aspects of the Servicing Fee with respect to defense of such Charged-off Mortgage Loan for claims, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys’ fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer from shall not be indemnified for any such cost or expense relating to claims against the responsibilities Servicer and incurred by reason of its willful misfeasance, bad faith or liabilities arising under this Agreementnegligence in the performance of its duties hereunder.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh4)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders Noteholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Note by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) such waiver is in accordance with the Servicer’s internal policies. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Indenture Trustee’s rights under the Purchase Agreement including the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. If the Servicer makes a good faith determination, as evidenced by an Officer’s Certificate delivered by the Servicer to the Indenture Trustee and the Master Servicer, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Indenture Trustee and the Master Servicer of such failure, and the Master Servicer shall notify the Originator of its obligation under the Purchase Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iv) above, then the Servicer shall deposit the amount of such waived Prepayment Charge in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Trust, is hereby authorized and empowered by the Indenture Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders Trust, the Issuing Entity, the Noteholders and the Trust FundIndenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Indenture Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansNoteholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Indenture Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any limited powers of attorney in the form of Exhibit F hereto and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney submitted to carry out such duties including a power of attorney the Indenture Trustee for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholdersexecution. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney and shall be indemnified by the Servicer (from its own funds without any right of reimbursement from the Collection Account), for any costs, liabilities or expenses incurred by the Indenture Trustee in connection with the use or misuse of such powers of attorney. The Servicer further is hereby authorized and empowered, on behalf of the Noteholders and the Indenture Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Indenture Trustee and the Noteholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Indenture Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions payments to CertificateholdersNoteholders, be added to the unpaid principal balance Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.01) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or Loan, (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicerunless, in its sole discretionany such case, may charge off such Mortgage Loan if it has made a Final Recovery Determination as provided in good faith with respect thereto (each such Mortgage LoanSection 3.07, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances the Mortgagor is in default with respect to any Charged-off the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable). In addition and notwithstanding anything in this Agreement to the contrary, neither the Servicer shall not nor the Indenture Trustee shall, under any circumstance, be entitled permitted to the Servicing Fee sell any Mortgage Loan (other than with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account exercise of an optional redemption pursuant to Section 3.10. In 8.07 of the event that Indenture or the repurchase of a Mortgage Loan Documents relating pursuant to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementSection 2.03).
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) Owner in accordance with the terms of this Agreement, Agreement and the Mortgage Loans, all applicable requirements and, to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer Subservicer or any Affiliate of the Servicer or any related Sub-Servicer Subservicer may have with the related Mortgagor;
(ii) the ownership or non-ownership interest of any Certificate Mortgage Loan by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s Subservicer's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Subservicer to waive) a Prepayment Charge only under the following circumstances: (i) the Servicer determines that such waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge and the Mortgage Loan, and the waiver of such Prepayment Charge is standard and customary in servicing similar Mortgage Loans (including the waiver of a Prepayment Charge in connection with a refinancing of the Mortgage Loan related to a default or a reasonably foreseeable default), or (ii) (A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by subsequent changes in applicable law or (iii) the Servicer has not received any documentation and/or information to enable the Servicer to confirm the existence of such Prepayment Charge. In no event shall the Servicer waive a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is not related to a default or a reasonably foreseeable default. If the Servicer waives or does not collect all or a portion of a Prepayment Charge relating to a Principal Prepayment in full or in part due to any action or omission of the Servicer, other than as provided above, the Servicer shall deposit the amount of such Prepayment Charge (or such portion thereof as had been waived for deposit) into the Collection Account at the time of such prepayment for distribution in accordance with the terms of this Agreement. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Subservicers as provided in Section 3.024.02, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirabledesirable with the goal of maximizing proceeds of the Mortgage Loan. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust a Subservicer is hereby authorized and empowered by the Trustee Owner when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Owner, and upon written notice to the Trust FundOwner, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansOwner. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 4.17, within five (155) days of the Closing Date, but subject to Section 3.17the Owner shall execute, at the Trustee shall execute written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such Subservicer any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer Subservicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney submitted to carry out such duties including a power of attorney the Owner for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholdersexecution. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee Owner shall not be liable for the actions of the Servicer or any Sub-Servicer Subservicers under such power powers of attorney. In addition, the Servicer hereby covenants to furnish, on a monthly basis, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information on its borrower credit files to Equifax, Experian and the TransUnion Credit Information Company with respect to each Mortgagor under a Mortgage Loan serviced by the Servicer subject to this Agreement. Subject to Section 3.09 4.09 hereof, in accordance with the standards of the second preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.094.09, and further as provided in Section 3.114.11. Any cost incurred by the Servicer or by a Sub-Servicer Subservicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions to Certificateholders, not be added to the unpaid principal balance Unpaid Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.035.03) nor shall and the Servicer shall not (i) except except, as provided in Section 3.07, 4.07 (when the related Mortgagor is in default with respect to such the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable), permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Unpaid Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan Loan, or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created in connection with the Mortgage Loans to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd3), Assignment, Assumption and Recognition Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd1), Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable or (iv) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii) or (iv) above, then the Trustee (upon receipt of written notice from the Servicer that such waiver has occurred) shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates (the “Originator Prepayment Charge Payment Amount”) pursuant to Section 3 of the Assignment Agreement. If a Prepayment Charge is waived other than in accordance with (i), (ii), (iii) or (iv) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of a Sub-Servicer or in the name of the Trust Trustee, solely in its capacity as Trustee of the Trust, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within Subject to Section 3.17, within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary and notwithstanding its ability to do so pursuant to the terms of the related mortgage note, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled required to enforce any provision in any mortgage note the Servicing Fee with respect enforcement of which would violate federal, state or local laws or ordinances designed to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreementdiscourage predatory lending practices.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Wmc1), Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Wmc1), Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Wmc1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the all Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (ii) such Prepayment Charge is unenforceable in accordance with applicable law or the collection of such related Prepayment Charge would otherwise violate applicable law. If a Prepayment Charge is waived as permitted by meeting the standards described in clause (ii) above, then the Servicer (in its capacity as Originator) shall be required to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the P Certificates, by depositing such amount into the Collection Account together with and at the time the amounts prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc Series 2005-Opt1), Pooling and Servicing Agreement (Carrington Mortgage Loan Trust Inc Series 2005-Opt2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the related Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer's certificate delivered by the Trustee to the Trust Administrator, that the Servicer's efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of the Servicer, shall enforce the obligation of the related Originator under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Trustee and the related Originator are the same entity, the Trust Administrator shall enforce the obligations of the related Originator under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the related Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer's certificate delivered by the Trustee to the Trust Administrator, that the Servicer's efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of the Servicer, shall enforce the obligation of the related Originator under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Trustee and the related Originator are the same entity, the Trust Administrator shall enforce the obligations of the related Originator under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.023.02 hereof, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.173.17 hereof, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are prepared by the Servicer and necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to however, such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.113.11 hereof. Any cost incurred by the Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07 hereof, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunderthereunder in connection with the REMIC regulations) and (B) cause any an Adverse REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optionEvent. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc MRT Ln Ps Th CRT Sr 01 Frb1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of practice of mortgage lenders and loan servicers administering similar mortgage loans in the Servicing Criteria and Accepted Servicing Practices local areas where the related Mortgaged Property is located but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, to do or cause to be done any and all things in connection with such servicing and administration which it may deem necessary or desirablein accordance with policies and procedures generally accepted in the mortgage banking industry. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trust when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Certificateholders, the Trust and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee on behalf of the Trust shall execute execute, at the written direction of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee on behalf of the Trust hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related to Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee on behalf of the Trust, at the direction of the Servicer, shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by (and furnish such power of attorney to) the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Trust, in its own name or in the name of a Sub-Servicer, when the Servicer believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trust, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trust and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in the first instance from collections on the related collections Mortgage Loans from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11. Any cost incurred by the Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” day under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. With respect to each Mortgage Loan, the Servicer will furnish, or cause to be furnished, information regarding the borrower credit file related to such Mortgage Loan to credit reporting agencies in compliance with the provisions of the Fair Credit Reporting Act and the applicable implementing regulations.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (WaMu Asset-Backed Certificates, WaMu Series 2007-He2), Pooling and Servicing Agreement (WaMu Asset-Backed Certificates, WaMu Series 2007-He2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Indenture Trustee and in the best interests of and for the benefit of the Certificateholders Noteholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Note by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Indenture Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Noteholders and the Trust FundIndenture Trustee, and upon notice to the Indenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Indenture Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansNoteholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Indenture Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Sub- Servicer to carry out their servicing and administrative duties hereunder, and the Indenture Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholdersduties. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions to CertificateholdersNoteholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.01) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modificationunless, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under as provided in Section 1001 of 3.07, the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, Mortgagor is in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances default with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring or such default is, in the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf judgment of the Trust and to send written notice of such waiver to the related MortgagorServicer, although the Mortgagor may still require arbitration of such disputes at its optionreasonably foreseeable). The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Servicing Agreement (Salomon Br Mor Sec Vii Inc Series 1998-11), Servicing Agreement (Salomon Br Mor Sec Vii Inc Series 1998-11)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He7), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He9)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer’s certificate delivered by the Trustee to the Trust Administrator, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of the Servicer, shall enforce the obligation of the Originator under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Trustee and the Originator are the same entity, the Trust Administrator shall enforce the obligations of the Originator under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wf2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wf1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) (a) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (b) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above and a representation or warranty regarding such Prepayment Charge has been breached, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Sponsor under the Mortgage Loan Purchase Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of the Sponsor to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Mortgage Loan Purchase Agreement. If the Sponsor fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee, the Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against the Sponsor. If a Prepayment Charge is waived other than in accordance with (i) through (iii) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. The Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) has fully furnished and will continue to fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ahl3), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ahl2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (iii) the collection of such Prepayment Charge would be in violation of applicable laws. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Trustee's rights under the Mortgage Loan Purchase Agreement including the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Servicer is unable to enforce such rights, it shall notify the Trustee of such failure, and the Trustee shall enforce the obligation of the Seller under the Mortgage Loan Purchase Agreement to pay to the Servicer the amount of such waived Prepayment Charge. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of Subject to Section 3.17, on the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Sub- Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith at the request of the Trustee with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to or affect the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated as a liquidated Mortgage Loannotify the Servicer of any such claim within fifteen (15) days of receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to in all aspects of the Servicing Fee with respect to defense of such Charged-off Mortgage Loan for claims, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys' fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer from shall not be indemnified for any such cost or expense relating to claims against the responsibilities Servicer and incurred by reason of its willful misfeasance, bad faith or liabilities arising under this Agreementnegligence in the performance of its duties hereunder.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Financial Asset Secs Corp Asset Backed Cert Sers 2003 Ff5), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2004-Ff2)
Servicer to Act as Servicer. The Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Servicing Account” shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or an escrow account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. Each of the Servicers shall service and administer the its respective Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) (a) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (b) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge or (v) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii), (iv) or (v) above and a representation or warranty regarding such Prepayment Charge has been breached, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Sponsor under the Mortgage Loan Purchase Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of the Sponsor to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Mortgage Loan Purchase Agreement. If the Sponsor fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee, the Servicer and the Depositor shall consult on further actions to be taken against the Sponsor. If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. The Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) has fully furnished and will continue to fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis. Notwithstanding anything to the contrary contained in Sections 3.02(b), 3.20, 3.21, 4.07, 7.01(vi) and 11.11, the obligations of Countrywide with respect to the Mortgage Loans serviced by Countrywide and Regulation AB shall be solely as set forth in the Countrywide Addendum Regulation AB.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and for so long as the Servicer is JPMorgan or any affiliate thereof, in accordance with the JPMorgan Servicing Standard and the respective Mortgage Loans and, to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of practice of prudent mortgage lenders and loan servicers administering similar mortgage loans (collectively, the Mortgage Loans, all applicable requirements of the “Servicing Criteria and Accepted Servicing Practices Standard”) but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar mortgage loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters or (v) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii), (iv) or (v) above, then the Trustee (upon receipt of written notice from the Servicer that such waiver has occurred) shall enforce the obligation of the related Originator to pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Originator Prepayment Charge Payment Amount”). If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of a Sub-Servicer or in the name of the Trust Trustee, solely in its capacity as Trustee of the Trust, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer (but not at its expense), when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary and notwithstanding its ability to do so pursuant to the terms of the related mortgage note, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled required to enforce any provision in any mortgage note the Servicing Fee with respect enforcement of which would violate federal, state or local laws or ordinances designed to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optiondiscourage predatory lending practices. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Wmc3), Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2006-Wmc4)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. For each Mortgage Loan, the Servicer will accurately and fully report its borrower credit files to each of the Credit Repositories in a timely manner.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Home Equity Loan Trust Series 2003-He2), Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equ Loan Tr Ser 2003-He1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Sec Corp Asset Back Pass-THR Certs Ser 2004-He2), Pooling and Servicing Agreement (Asset Back Pass-Through Certificates, Series 2004-He3)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (B) such waiver is made in connection with a refinancing of the related Mortgage Loan unrelated to a default or a reasonably foreseeable default where (x) the related Mortgagor has stated to the Servicer or an applicable Sub-Servicer an intention to refinance the related Mortgage Loan and (y) the Servicer has concluded in its reasonable judgment that the waiver of such Prepayment Charge would induce such mortgagor to refinance with the Servicer; provided, however, that the Servicer shall waive no more than 5.00% of the Prepayment Charges (by number of Prepayment Charges) set forth on the Prepayment Charge Schedule in accordance with clause (ii)(B) above. If a Prepayment Charge is waived as permitted by meeting the standards described in clauses (i) and (ii)(B) above, then the Servicer is required to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account together with and at the time that the amount prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Notwithstanding any other provisions of this Agreement, any payments made by the Servicer in respect of any waived Prepayment Charges pursuant to clauses (i) and (ii)(B) above shall be deemed to be paid outside of the Trust Fund. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-3), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-3)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in the form attached as Exhibit K hereto in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He4), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He10)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is
(1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. Any such Charged-off Mortgage Loan shall be treated If a Prepayment Charge is waived as a liquidated Mortgage Loan. The permitted by meeting the standard described in clause (iii) above, then the Servicer shall have no enforce the obligation of the related Originator to make any P&I Advances or Servicing Advances pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the related Originator) for the benefit of the Holders of the Class P Certificates. In the event of a Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trustee shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of each Originator and the Seller under the Mortgage Loan Purchase Agreements, including, without limitation, any obligation of either Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Salomon Broth Mort Sec Vii Inc Citi Hm Eq Ln Tr Se 2003-He1), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the all Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (ii) such Prepayment Charge is unenforceable in accordance with applicable law or the collection of such related Prepayment Charge would otherwise violate applicable law. If a Prepayment Charge is waived as permitted by meeting the standards described in clause (ii) above, then the Servicer (in its capacity as Originator) shall be required to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the P Certificates, by depositing such amount into the Collection Account together with and at the time the amounts prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2005-Opt3), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2005-Opt4)
Servicer to Act as Servicer. The Servicer Fremont Investment & Loan shall service and administer the Mortgage Loans from the Cut-off Date through and including December 31, 2006 (with respect to the Mortgage Loans set forth on Schedule III) and January 31, 2007 (with respect to the Mortgage Loans set forth on Schedule III) in accordance with the Master Agreement. Wxxxx Fargo shall service and administer the Mortgage Loans, beginning on January 1, 2007 (with respect to the Mortgage Loans set forth on Schedule III) and February 1, 2007 (with respect to the Mortgage Loans set forth on Schedule III), on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for similar investors, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes and (b) may waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar mortgage loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters or (v) the Mortgage Loan has been accelerated or paid off in connection with the workout or borrower default, notwithstanding that the terms of such Mortgage Loan or state or federal loaw might permit the imposition of a Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii) or (iv) above, then the Trustee (upon receipt of written notice from the Servicer that such waiver has occurred) shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Trustee for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates. If a Prepayment Charge is waived other than in accordance with (i), (ii), (iii), (iv) or (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trustee for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates. The Servicer shall not have an obligation to pay the amount of any uncollected Prepayment Charge if the failure to collect such amount is the direct result of inaccurate or incomplete information furnished to the Servicer by the Originator or a prior servicer, in which case the Trustee (upon receipt of written notice from the Servicer that such waiver has occurred) shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Trustee for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances (other than Servicing Advances) with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations Regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary and notwithstanding its ability to do so pursuant to the terms of the related mortgage note, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled required to enforce any provision in any mortgage note the Servicing Fee with respect enforcement of which would violate federal, state or local laws or ordinances designed to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optiondiscourage predatory lending practices. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-3), Pooling and Servicing Agreement (Fremont Home Loan Trust 2006-3)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Servicer or Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.023.02 hereof, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.173.17 hereof, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are prepared by the Servicer and necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to however, such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Notwithstanding anything to the contrary herein, the Servicer shall undertake to defend claims against the Trust, the Trustee and/or itself by a Mortgagor or otherwise related to the servicing of any Mortgage Loans. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.113.11 hereof. Any cost incurred by the Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Loan Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07 hereof, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect cause an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Adverse REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optionEvent. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (HarborView Mortgage Loan Trust 2005-5), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the each Mortgage Loans Loan on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and such Mortgage Loan and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer, any Servicer Affiliate or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the ServicerServicer Affiliate;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.023.02 hereof, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the related Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.173.17 hereof, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are prepared by the Servicer and necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to however, such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.113.11 hereof. Any cost incurred by the Servicer or by a any Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor and shall the Servicer not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Loan Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07 hereof, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any the Upper Tier REMIC or the Lower Tier REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Monthly Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate reasonably necessary in its best judgment in accordance order to comply with the its servicing standards set forth aboveduties hereunder, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee or any of them, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when unless the related Mortgagor is in default with respect to such the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, ) permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any the REMIC Trust to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer to Act as Servicer. The For and on behalf of the Trustee and the Certificateholders, the Servicer shall service and administer the Mortgage Loans Loan (including the monitoring of the Grantor's compliance with the terms of each Mortgage, as set forth in Section 3.22 hereof) on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoan and, all applicable requirements to the extent consistent with such terms, in accordance with prudent commercial mortgage loan servicing standards and procedures generally accepted in the commercial mortgage banking industry and generally in a manner consistent with the servicing of similar loans serviced by the Servicing Criteria Servicer or an affiliate in its own portfolio and Accepted Servicing Practices with a view to the maximization of timely recovery of principal of and interest on the Mortgage Loan but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related MortgagorGrantor or any Affiliate of the Grantor, or with the Manager or any Affiliate thereof;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation 's obligations to make P&I Advances or Servicing Advancesto incur servicing expenses with respect to the Mortgage Loan; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards (hereinafter referred to as "Accepted Servicing Practices") and the terms of this Agreement and of the respective Mortgage LoansLoan, the Servicer shall have full power and authority, acting alone and/or through one or through a more Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, to do or cause to be done any and all things in connection with such servicing and administration which that it may deem necessary or desirable. Without limiting the generality of the foregoing; provided, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovehowever, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect take no action that is materially inconsistent with or materially prejudices the interests interest of the Trust Fund Trustee or the Certificateholders in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claimMortgage Loan or the rights and interest of the Depositor, proceeding or litigation regarding the Mortgage LoansTrustee and the Certificateholders under this Agreement. The Servicer shall service and administer the Mortgage Loans Loan in accordance with applicable law state and shall provide federal law. Subject to Section 3.09, at the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days written request of the Closing DateServicer, but subject to Section 3.17accompanied by the form of powers or other documents being requested, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any powers of attorney and other documents as are necessary or appropriate to enable the Servicer or and any Sub-Servicer to carry out their respective servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable held responsible for the actions of any acts by either the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment their respective uses of any term such powers of any related Mortgage Loan that would both (A) effect an exchange attorney or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loanother document. The Servicer shall have no obligation to make indemnify the Trustee and hold it harmless against any P&I Advances loss, damages, penalties, fines, forfeitures, legal fees and related costs, judgments and other costs and expenses resulting from any claim, demand, loss, defense or Servicing Advances assertion based on or grounded on, or resulting from the willful misfeasance, bad faith or negligence of the Servicer with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account actions taken by it pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf powers of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities attorney or liabilities arising under this Agreementother document.
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Servicer to Act as Servicer. The (i) Servicer shall service and administer the Mortgage Loans Receivables on behalf of the Trust Fund Borrower and in the best interests of and Administrative Agent (for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing PracticesSecured Parties) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or and/or through a Sub-Servicer or Sub-Servicers, as the case may be, subservicers as provided in Section 3.028.2(b)(iii), to do or cause to be done any and all things which they may deem reasonably necessary or desirable in connection with such servicing and administration and which it are consistent with this Agreement. Consistent with the terms of this Agreement and the Credit and Collection Policy, Servicer may deem necessary waive, modify, or desirablevary any term of any Receivable or consent to the postponement of strict compliance with any such term or in any manner, grant indulgence to any Obligor if, in Servicer’s reasonable determination, such waiver, modification, postponement, or indulgence is not materially adverse to the interests of Borrower or Administrative Agent (for the benefit of the Secured Parties); provided, however, that Servicer may not permit any modification with respect to any Receivable that would reduce the Unpaid Balance (except for actual payments thereof), or extend the due date thereof, except that Servicer may (A) take such actions with respect to Defaulted Receivables if such actions will, in Servicer’s reasonable business judgment, maximize the Collections thereof and (B) charge-off such Receivable in accordance with its Credit and Collection Policy. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust Borrower is hereby authorized and empowered by the Trustee Borrower when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundBorrower, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, discharge and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints Receivables.
(in its own name or that of the Trustii) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans Receivables by employing such procedures (including collection procedures) and degree of care, in accordance each case consistent with applicable law and shall provide its Credit and Collection Policy, as are customarily employed by Servicer in servicing and administering receivables owned or serviced by it comparable to the Mortgagors any reports required to be provided to them therebyReceivables. The Servicer shall also comply take no action to impair Administrative Agent’s (for the benefit of the Secured Parties) security interest in any Receivable, except to the extent allowed pursuant to this Agreement or required by law.
(iii) Servicer may perform any of its duties pursuant to this Agreement, including those delegated to it pursuant to this Agreement, through subservicers appointed by Servicer; provided that such subservicing arrangements may be terminated, at Administrative Agent’s discretion, upon the replacement of ASP as Servicer. Such subservicers may include Affiliates of Servicer. Notwithstanding any such delegation of a duty, Servicer shall remain obligated and liable for the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen such duty as if Servicer were performing such duty.
(15iv) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer may take such documents actions as are necessary or appropriate to enable discharge its duties as Servicer in accordance with this Agreement, including the Servicer or any Sub-Servicer power to carry out their servicing execute and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure deliver on behalf of the Trust Fund Borrower such instruments and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent documents as may be customary, necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents performance of Servicer’s duties under this Agreement (including consents, waivers, and discharges relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Receivables).
(v) Servicer shall be entitled to waive any such provisions on behalf of keep true and complete records covering the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under transactions contemplated by this Agreement; provided, however, that no such delegation shall release including the Servicer identity and collection status of each Receivable purchased by Borrower from Originator and the responsibilities or liabilities arising under this AgreementPurchase Price Credits.
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Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of Agreement and the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactionStandard. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (iii) collection of the related Prepayment Charge would violate applicable law, or (iv) the Servicer has not been provided with sufficient information to enable it to collect the Prepayment Charge or (v) collection would be considered “predatory” or “illegal” under written guidance by federl, state or local regulatory authority. If a Prepayment Charge is waived as permitted by meeting both of the standards described in clauses (iii), (iv) or (v) above, then the Seller shall, pursuant to the Mortgage Loan Purchase Agreement, be required to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. Subject only to the above-described servicing standards Servicing Standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, Servicing Standards to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders Certificateholders, and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesServicer, to bring or respond to civil actions or complaints (in its own name or that of the TrustTrust Fund) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.insurance
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2005-D)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (ii) the collection of such Prepayment Charge would be in violation of applicable laws. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of Subject to Section 3.17, on the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith at the request of the Trustee with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated as a liquidated Mortgage Loannotify the Servicer of any such claim within fifteen (15) days of receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to effect the Servicing Fee with respect to smooth transition of any such Charged-off Mortgage Loan for undertaking, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys' fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer from shall not be indemnified for any such cost or expense relating to claims against the responsibilities Servicer and incurred by reason of its willful misfeasance, bad faith or liabilities arising under this Agreementnegligence in the performance of its duties hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2003-Ff2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust, the Certificateholders and the Trustee or any of them, and upon notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would affect the lien position of the Mortgage Loan. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trust Administrator a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trust Administrator on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee, the Trust Administrator and the Certificateholders, shall enforce the obligations of the Originator and the Seller under the Mortgage Loan Purchase Agreement, including, without limitation, any obligation of the Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Sal Home Equ Ln Tr Ser 2002 Wmc1)
Servicer to Act as Servicer. The Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Escrow Account” shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. Each Servicer, other than JPMorgan, shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. JPMorgan shall service and administer the JPMorgan Mortgage Loans on behalf of the Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by JPMorgan in its reasonable judgment) in accordance with the JPMorgan Servicing Standard and the respective Mortgage Loans. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (I) with respect to the Countrywide Mortgage Loans and the JPMorgan Mortgage Loans (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge; or (II) with respect to the HomEq Mortgage Loans, (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of HomEq, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) such waiver is required under local, state or federal law, (iv) the mortgage debt has been accelerated as a result of the Mortgagor’s default in making its Monthly Payments, (v) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters, (vi) the Principal Prepayment is related to a Mortgage Loan for which the Relief Act is applicable or (vii) the Principal Prepayment has occurred with respect to a Mortgage Loan for which the related borrower has died. If a Prepayment Charge or any portion thereof is waived as permited by meeting the standard described in clauses (iii) or (iv) above (and additionally, with respect to the HomEq Mortgage Loans, the standards described in clauses (v) through (vii) above), then the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the related Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer’s certificate delivered by the Trustee to the Trust Administrator, that such Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of such Servicer, shall enforce the obligation of the related Originator under the Master Agreement to pay to the related Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Trusete and the related Originator are the same entity, the Trust Administrator shall enforce the obligations of the related Originator under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards (except, with respect to JPMorgan, the JPMorgan Servicing Standard) and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveabove (except, with respect to JPMorgan, the JPMorgan Servicing Standard), to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-He3)
Servicer to Act as Servicer. (a) The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the extent consistent with such terms, in the same manner in which it services and administers similar Mortgage LoansLoans for its own portfolio, all applicable requirements giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar Mortgage Loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related to Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. The Trustee and the Depositor hereby specifically (i) consent to the pledge and assignment by the Servicer of all the Servicer's right, title and interest in, to and under this Agreement to the Servicing Rights Pledgee, for the benefit of certain lenders, and (ii) provided that no Servicer Event of Default exists, agree that upon delivery to the Trustee by the Servicing Rights Pledgee of a letter signed by the Servicer whereunder the Servicer shall resign as Servicer under this Agreement, the Trustee shall appoint the Servicing Rights Pledgee or its designee as successor Servicer, provided that at the time of such appointment, the Servicing Rights Pledgee or such designee meets the requirements of a successor Servicer pursuant to Section 7.02 and agrees to be subject to the terms of this Agreement. If, pursuant to any provision hereof, the duties of the Servicer are transferred to a successor, the entire amount of the Servicing Fee and other compensation payable to the Servicer pursuant hereto shall thereafter be payable to such successor.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp Home Equity Ln Tr Ser 2001-He2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the The Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name, when the Servicer believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be subject to withdrawal by the Servicer from the Collection Account. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2003-B Asset Backed Certs)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Issuer and in the best interests of and for the benefit of the Certificateholders Securityholders and the Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Security by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Monthly Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate reasonably necessary in its best judgment in accordance order to comply with the its servicing standards set forth aboveduties hereunder, to execute and deliver, on behalf of the Certificateholders Issuer, the Securityholders and the Trust FundIndenture Trustee or any of them, and upon notice to the Indenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03Indenture Trustee, the Servicer shall represent Issuer, the Securityholders and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansInsurer. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days Subject to Section 3.19, the Indenture Trustee shall execute, at the written request of the Closing DateServicer, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or distributions to CertificateholdersSecurityholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC the Trust to fail to qualify as a REMIC REIT under the Code or the imposition of any tax on “"prohibited transactions” or “contributions after the startup date” " under the REMIC REIT Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer to Act as Servicer. Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Servicing Account” shall be to actions to be taken or previously taken by the Servicer with respect to the Collection Account or an escrow account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read as if the Servicer alone was servicing and administering its Mortgage Loans hereunder. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) (a) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (b) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge or (v) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii), (iv) or (v) above and a representation or warranty regarding such Prepayment Charge has been breached, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Originator under the related Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Assignment Agreement. If the Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against the Originator. Notwithstanding the foregoing, to the extent that the Trustee and the Originator are the same entity, the Trust Administrator shall enforce the obligations of the Originator under the related Master Agreement pursuant to the terms of this paragraph. If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. The Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) has fully furnished and will continue to fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Amc1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (B) the collection of such Prepayment Charge is prohibited by applicable law. If a Prepayment Charge is waived other than as permitted by meeting the standards described in clauses (i) and (ii) above, then as a remedy for the breach of such covenant, the Servicer shall pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account together with and at the time that the amount prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Notwithstanding any of the foregoing, and notwithstanding any state or federal law or provision of this Agreement permitting otherwise, the Servicer shall not require the payment of any Prepayment Charge in any instance in which the mortgage debt is accelerated as the result of the borrower's default in making required payments on such Mortgage Loan, and no Servicer Prepayment Charge Payment Amount shall be payable in connection with any noncollection of any Prepayment Charge in any such instance. Notwithstanding any other provisions of this Agreement, any payments made by the Servicer in respect of any Prepayment Charges waived other than as permitted hereunder shall be deemed to be paid outside of any REMIC. 66 Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such a limited power of attorney in the form of Exhibit I, executed by each payee or last endorsee, as applicable, of each of the Mortgage Notes and each mortgagee or last assignee, as applicable, of each of the Mortgages and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name, when the Servicer believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advancethis Section 3.01, the Servicer Servicer, on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.035.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with With respect to any Charged-off each of the Mortgage Loan and Loans, the Servicer shall not be entitled furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors (the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received "Credit Repositories") in a timely manner, and in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited therewith, in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such case of each Group I Mortgage Loan, the Servicer shall be entitled transmit full-file credit reporting data for each such Mortgage Loan pursuant to waive any such provisions on behalf Xxxxxx Xxx Guide Announcement 95-19 and shall report one of the Trust and to send written notice of such waiver to the related Mortgagorfollowing statuses each month as follows: new origination, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; providedcurrent, howeverdelinquent (30-, that no such delegation shall release the Servicer from the responsibilities 60-, 90-days, etc.), foreclosed, or liabilities arising under this Agreementcharged-off.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-B)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (B) such waiver is made in connection with a refinancing of the related Mortgage Loan unrelated to a default or a reasonably foreseeable default where (x) the related mortgagor has stated to the Servicer or an applicable Sub-Servicer an intention to refinance the related Mortgage Loan and (y) the Servicer has concluded in its reasonable judgement that the waiver of such Prepayment Charge would induce such mortgagor to refinance with the Servicer; provided, however, that the Servicer shall waive no more than 5.00% of the Prepayment Charges (by number of Prepayment Charges) set forth on the Prepayment Charge Schedule in accordance with clause (ii)(B) above or (iii) collection of such Prepayment Charge is prohibited by applicable law. If a Prepayment Charge is waived as permitted by meeting the standards described in clauses (i) and (ii)(B) above, then the Servicer is required to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account together with and at the time that the amount prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Notwithstanding any other provisions of this Agreement, any payments made by the Servicer in respect of any waived Prepayment Charges pursuant to clauses (i) and (ii)(B) above shall be deemed to be paid outside of the Trust Fund. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Sub- Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such a limited power of attorney provided to the Trustee in the form of Exhibit I, executed by each payee or last endorsee, as applicable, of each of the Mortgage Notes and each mortgagee or last assignee, as applicable, of each of the Mortgages and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Secs Corp First Franklin Mort Ln Tr 2002-Ff4)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Certificateholders, the Certificate Insurer and the Trust FundTrustee, and upon notice to the Trustee and the Certificateholders, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the servicing standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advanceparagraphs, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and also not permit extensions beyond the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementFinal Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2006-L1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Issuer and in the best interests of and for the benefit of the Certificateholders Securityholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Loans and any insurance policies related thereto, (ii) all Applicable Regulations, (iii) the terms of this Servicing Agreement, and (iv) to the Mortgage Loansextent consistent with the preceding requirements, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer Subservicer or any Affiliate of the Servicer or any related Sub-Servicer Subservicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Security by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s Subservicer's right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (all of the foregoing, the "Servicing Standard"). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage LoansServicing Standard, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Subservicers as provided in Section 3.026.05, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Subservicer is hereby authorized and empowered by the Indenture Trustee when to and shall, to the Servicer believes it appropriate in its best judgment extent provided for under this Servicing Agreement and in accordance with the servicing standards set forth aboveServicing Standard, to (i) execute and deliver, on behalf of the Certificateholders Noteholders and the Trust FundIndenture Trustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to Properties, (ii) institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to (iii) market, sell and transfer title of REO Properties held in the name of included the Trust Fund Estate to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, to (iv) bring or respond to civil actions or complaints related to any Loan, Mortgaged Property or REO Property included in the Trust Estate and (in its own name or that of the Trustv) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03At the written request of the Servicer, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Indenture Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder. By execution of this Servicing Agreement, the Issuer and the Indenture Trustee hereby grants grant to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which the form of Exhibit B hereto, to execute any and all documents necessary to carry out any and all servicing duties described in this Servicing Agreement (including the taking of and transferring title of REO Properties to third parties) and expressly confirms that this paragraph along with the face page and a related Mortgaged Property is located to enable the Servicer to take title and dispose copy of the related Mortgaged Properties after foreclosure on behalf of signature page (duly executed) to this Servicing Agreement shall constitute the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Indenture Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Subservicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards terms of this Servicing Agreement and with respect to any Loan that is Delinquent or in default, the preceding paragraphServicer may waive, and provided that modify or vary any term of any Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Standard; provided, however, that:
(i) the Servicer shall not be required to make any nonrecoverable Servicing Advance, future advances (except P&I Advances); and
(ii) the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Loan Rate, defer or forgive the payment of any principal or interest payments, reduce or increase the principal balance outstanding Principal Balance (except for reductions resulting from actual payments of principal) or change extend the final maturity date on such Mortgage Loan (unless as provided in Section 3.02, (i) the Mortgagor is Delinquent or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, Mortgagor is in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances default with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option). The Servicer may delegate any of its responsibilities under this Servicing Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Servicing Agreement. All references to Servicer in this Servicing Agreement shall be deemed to include any Subservicer duly appointed by the Servicer pursuant to this Servicing Agreement. Consistent with the foregoing and this Servicing Agreement, the Servicer shall seek to maximize the collection of amounts due, and minimize losses that might be incurred, in connection with any Loan. For any Delinquent or defaulted Loan, the Servicer (a) shall pursue collection from the related Mortgagor of all amounts due under the terms of such Loan, (b) at such time as in the judgment of the Servicer such collection efforts have been exhausted but in no case to exceed a period of __ months since such Loan became Delinquent, the Servicer shall consider other workout activities pursuant to Section 3.02 to maximize collections and minimize losses, and (c) at such time as in the judgment of the Servicer such workout activities have been exhausted, the Servicer shall seek all other remedies that in its best judgment are available to maximize collections and minimize losses through foreclosure sale in respect of Mortgaged Properties or through any legal action brought to obtain judgment against the related Mortgagor or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity.
Appears in 1 contract
Samples: Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (the above is the "Servicing Standard"). To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) would be considered "predatory" under any applicable federal, state or local regulatory authority. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then the Trustee shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. Subject only to the above-above- described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust Fund is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its reasonable judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary and notwithstanding its ability to do so pursuant to the terms of the related mortgage note, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled required to enforce any provision in any mortgage note the Servicing Fee with respect enforcement of which would violate federal or state laws designed to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreementdiscourage predatory lending practices.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Ser 2003 WMC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Mortgage Loans and any insurance policies related thereto, (ii) all Applicable Regulations, (iii) the terms of this Agreement, and (iv) to the Mortgage Loansextent consistent with the preceding requirements, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (all of the foregoing, the “Servicing Standard”). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Mortgage Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage LoansServicing Standard, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.026.06, 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 of the foregoing, the Servicer in its own name, on behalf of the Trustee, in the name of a Sub-Servicer, or in the name of the Trust Trustee is hereby authorized and empowered by the Trustee when to and shall, to the Servicer believes it appropriate in its best judgment extent provided for under this Agreement and in accordance with the servicing standards set forth aboveServicing Standard, to (i) execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to Properties, (ii) institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, in the name of the Trust Fund, on behalf of the Trust Fund Trustee and Certificateholders and to the Certificateholders, (iii) market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, to (iv) bring or respond to civil actions or complaints (in its own name or that of the TrustTrust Fund or the Trustee on behalf of the Trust Fund) related to any Mortgage Loan, Mortgaged Property or REO Property held by the Trust Fund and to (v) execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03, At the Servicer shall represent and protect the interests written request of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17Servicer, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate and provided to the Trustee to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunderhereunder (including a power of attorney in the form of Exhibit I hereto). By execution of this Agreement, and the Trustee Trustee, on behalf of the Trust Fund, hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located the form of Exhibit I hereto, to enable execute any and all documents necessary to carry out any and all servicing duties described in this Agreement (including the Servicer taking of and transferring title of REO Properties to take title and dispose third parties held in the name of the related Mortgaged Properties after foreclosure on behalf Trustee for the benefit of the Trust Fund Trust) and expressly confirms that this paragraph along with the Certificateholders. The Trustee face page and a copy of the signature page (duly executed) to this Agreement shall execute a separate constitute the power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Trustee shall not under any circumstance be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards terms of this Agreement and with respect to any Mortgage Loan that is Delinquent or in default, the preceding paragraphServicer may waive, and provided that modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Standard; provided, however, that:
(A) the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03);
(B) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, defer or forgive the payment of any principal or interest payments, reduce or increase the principal balance outstanding Stated Principal Balance (except for reductions resulting from actual payments of principal) or change extend the final maturity date on such Mortgage Loan (unless as provided in Section 3.02, (i) the Mortgagor is Delinquent or (ii) the Mortgagor is in default or a default is reasonably foreseeable with respect to the Mortgage Loan); and
(C) the Servicer shall not permit any modificationwaiver, waiver postponement or amendment indulgence or consent to (i) partial releases of Mortgages, (ii) alterations, (iii) removal, demolition or division of properties subject to Mortgages, (iv) modification or (v) second mortgage subordination agreements with respect to any term of any related Mortgage Loan that would in any case would: (i) affect adversely the status of any Trust REMIC as a REMIC, (ii) cause any Trust REMIC to be subject to a tax on “prohibited transactions” or “contributions” pursuant to the REMIC Provisions, or (iii) both (Ax) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (By) cause any Trust REMIC constituting part of the Trust Fund to fail to qualify as a REMIC under the Code or to be subject to the imposition of any tax on “prohibited transactions” or “contributions contributions” after the startup date” Startup Day under the REMIC Provisions. The Servicer.
(D) for Principal Prepayments in full, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally, (ii) the Servicing Fee with respect collectability thereof shall have been limited due to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received acceleration in connection with any recoveries received with respect a foreclosure or other involuntary payment or otherwise limited or prohibited by applicable law, (iii) in the Servicer’s reasonable judgment, as described in this Section 3.01, (x) such waiver relates to such Charged-off a default or a Mortgage Loan shall be deposited in that is Delinquent, (y) such waiver would maximize recovery of total proceeds taking into account the Collection Account pursuant to Section 3.10. In the event that the value of such Prepayment Charge and related Mortgage Loan Documents relating to and (z) doing so is standard and customary in servicing similar Mortgage Loans (including any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a Mortgage Loan that is Delinquent), (iv) the collection of such Mortgage LoanPrepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters, or (v) the Servicer has requested from the Depositor or the Originator sufficient information to enable it to collect the Prepayment Charge and such information has not been provided. In no event shall be entitled the Servicer waive a Prepayment Charge in connection with a repayment or a refinancing of a Mortgage Loan that is not Delinquent or related to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. a default; The Servicer may delegate any of its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. All references to Servicer in this Agreement shall be deemed to include any Sub-Servicer duly appointed by the Servicer pursuant to this Agreement. Consistent with the foregoing and this Agreement, the Servicer shall seek to maximize the collection of amounts due, and minimize losses that might be incurred, in connection with any Mortgage Loan. For any Delinquent or defaulted Mortgage Loan, the Servicer (a) shall pursue collection from the related Mortgagor of all amounts due under the terms of such Mortgage Loan, (b) at such time as in the reasonable judgment of the Servicer such collection efforts have been exhausted, the Servicer shall consider other workout activities pursuant to Section 3.02 to maximize collections and minimize losses, and (c) at such time as in the reasonable judgment of the Servicer such workout activities have been exhausted, the Servicer shall seek all other remedies that in its best judgment are available to maximize collections and minimize losses through foreclosure sale in respect of Mortgaged Properties or through any legal action brought to obtain judgment against the related Mortgagor or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GE-WMC Asset-Backed Pass-Through Trust, Series 2006-1)
Servicer to Act as Servicer. (a) Unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by each Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to "the Collection Account," "the Servicing Account" or "the REO Account" shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account, the Servicing Account or the REO Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder.
(b) The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) the Servicer has not been provided with sufficient information to enable it to collect the Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) or (iv) above, then the Servicer shall enforce the Trustee's rights under the Mortgage Loan Purchase Agreement including the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders Certificateholders, and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesServicer, to bring or respond to civil actions or complaints (in its own name or that of the Trust) Trust Fund and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for (A) a reduction of interest payments resulting from the application of the Relief Act or any similar state statutes or (B) reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust, Series 2004-A)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. Any such Charged-off Mortgage Loan shall be treated If a Prepayment Charge is waived as a liquidated Mortgage Loan. The permitted by meeting the standard described in clause (iii) above, then the Servicer shall have no enforce the obligation of the related Originator to make any P&I Advances or Servicing Advances pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the related Originator) for the benefit of the Holders of the Class P Certificates. In the event of a Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trustee shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of each Originator and the Seller under the Mortgage Loan Purchase Agreements, including, without limitation, any obligation of either Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (National City Mortgage Capital LLC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. ; To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) Trust and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and each shall administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Trust, Series 2006-He1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Mortgage Loans and any insurance policies related thereto, (ii) all Applicable Regulations, (iii) the terms of this Agreement, and (iv) to the Mortgage Loansextent consistent with the preceding requirements, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (all of the foregoing, the "SERVICING STANDARD"). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Mortgage Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage LoansServicing Standard, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.026.06, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when to and shall, to the Servicer believes it appropriate in its best judgment extent provided for under this Agreement and in accordance with the servicing standards set forth aboveServicing Standard, to (i) execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to Properties, (ii) institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, in the name of the Trust Fund, on behalf of the Trust Fund Trustee and Certificateholders and to the Certificateholders, (iii) market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, to (iv) bring or respond to civil actions or complaints (in its own name or that of the TrustTrust Fund or the Trustee on behalf of the Trust Fund) related to any Mortgage Loan, Mortgaged Property or REO Property held by the Trust Fund and to (v) execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03, At the Servicer shall represent and protect the interests written request of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17Servicer, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder. By execution of this Agreement, and the Trustee Trustee, on behalf of the Trust Fund, hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located the form of Exhibit I hereto, to enable execute any and all documents necessary to carry out any and all servicing duties described in this Agreement (including the Servicer taking of and transferring title of REO Properties to take title and dispose third parties held in the name of the related Mortgaged Properties after foreclosure on behalf Trustee for the benefit of the Trust Fund Trust) and expressly confirms that this paragraph along with the Certificateholders. The Trustee face page and a copy of the signature page (duly executed) to this Agreement shall execute a separate constitute the power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 this Agreement and with respect to any Mortgage Loan so permit. Notwithstanding anything that is Delinquent or in this Agreement to the contrarydefault, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07waive, when the related Mortgagor is in default with respect to such Mortgage Loan modify or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of vary any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance consent to the postponement of strict compliance with any such Mortgage Loan under Section 1001 of the Code (term or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause in any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect manner grant indulgence to any Charged-off Mortgage Loan and the Servicer shall not be entitled to Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this AgreementStandard; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.that:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Servicer to Act as Servicer. (a) The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer Loans and shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Subservicers as provided in Section 3.02, to do or cause to be done any and all things which it may deem necessary or desirable in connection with such servicing and administration which it may deem necessary or desirableadministration. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust a Subservicer is hereby authorized and empowered by the Trustee when the Servicer or the Subservicer, as the case may be, believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of consent to assumption or modification in connection with a proposed conveyance, or of assignment of any Mortgage and Mortgage Note in connection with the repurchase of a Mortgage Loan and all other comparable instruments, or with respect to the modification or rerecording of a Mortgage for the purpose of correcting the Mortgage, the subordination of the lien of the Mortgage in favor of a public utility company or government agency or unit with powers of eminent domain, the taking of a deed in lieu of foreclosure, the completion of judicial or non-judicial foreclosure, the conveyance of a Mortgaged Property to an Insurer, the acquisition of any property acquired by foreclosure or deed in lieu of foreclosure, or the management, marketing and conveyance of any property acquired by foreclosure or deed in lieu of foreclosure with respect to the Mortgage Loans and with respect to the Mortgaged Properties and Properties. Notwithstanding the foregoing, subject to institute foreclosure proceedings Section 3.07(a), the Servicer shall not permit any modification with respect to any Mortgage Loan that would constitute a sale or obtain a deed-in-lieu of foreclosure so as to convert the ownership exchange of such properties, and to hold or cause to be held title to such properties, on behalf Mortgage Loan within the meaning of Section 1001 of the Trust Fund Code and Certificateholders any proposed, temporary or final regulations promulgated thereunder (other than in connection with a proposed conveyance or assumption of such Mortgage Loan that is treated as a Principal Prepayment in Full pursuant to Section 3.13(d) hereof) and cause the REMIC to market, sell and transfer title of REO Properties held in fail to qualify as such under the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by Code. The Trustee shall furnish the Servicer that are in the best interests with any powers of the Certificateholders attorney and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document documents necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law Loans. In servicing and shall provide administering any Nonsubserviced Mortgage Loan, the Servicer shall, to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also extent not inconsistent with this Agreement, comply with the Program Guide as if it were the originator of such Mortgage Loan and had retained the servicing rights and obligations in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen respect thereof.
(15b) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable All costs incurred by the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county by Subservicers in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in properties subject to 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 Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property Mortgage Loans shall not, for the purpose of calculating monthly distributions to Certificateholders, be added to the unpaid principal balance of amount owing under the related Mortgage LoanLoans, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement , and such costs shall be recoverable to the contrary, the extent permitted by Section 3.10(a)(ii).
(c) The Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan enter into one or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received more agreements in connection with any recoveries the offering of pass-through certificates evidencing interests in one or more of the Certificates providing for the payment by the Servicer of amounts received with respect by the Servicer as servicing compensation hereunder and required to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that cover certain Prepayment Interest Shortfalls on the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage LoanLoans, which payment obligation will thereafter be an obligation of the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreementhereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Stanwich Asset Acceptance CO LLC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or the related Mortgage Note is not available or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Trustee shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is 57 hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp Asset Back Cert Ser 2003-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trustee and the Trust Fund Administrator and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Monthly Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate reasonably necessary in its best judgment in accordance order to comply with the its servicing standards set forth aboveduties hereunder, to execute and deliver, on behalf of the Certificateholders Certificateholders, the Trustee or any of them, and upon notice to the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trust Administrator shall execute, or, if necessary, cause the Trustee shall to execute at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee Administrator shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when unless the related Mortgagor is in default with respect to such the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, ) permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both both
(A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any the REMIC Trust to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer to Act as Servicer. The Unless otherwise specified, all references to actions to be taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to "the Collection Account" or "the Servicing Account" shall service be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. Wells Fargo shall xxxxice and administer the Mortgage Loans Wells Fargo Mortgxxx Xoans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. JPMorgan shall service and administer the JPMorgan Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by JPMorgan in its reasonable judgment) in accordance with the JPMorgan Servicing Standard and the respective Mortgage Loans. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar mortgage loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the collection of such Prepayment Charge would be considered "predatory" pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters or (v) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii), (iv) or (v) above, then the Trustee (upon receipt of written notice from the Servicer that such waiver has occurred) shall enforce the obligation of the related Originator to pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the "Originator Prepayment Charge Payment Amount"). If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the "Servicer Prepayment Charge Payment Amount"). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards (with respect to Wells Fargo) or tx xxx JPMorgan Servicing Standard (with respect to JPMorgan) and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveabove (with respect to Wells Fargo) and xxxx the JPMorgan Servicing Standard (with respect to JPMorgan), to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer (but not at its expense), when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary and notwithstanding its ability to do so pursuant to the terms of the related mortgage note, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled required to enforce any provision in any mortgage note the Servicing Fee with respect enforcement of which would violate federal, state or local laws or ordinances designed to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optiondiscourage predatory lending practices. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2006-He1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements of to the Servicing Criteria extent consistent with such terms, in the same manner in which it services and Accepted Servicing Practices administers similar mortgage loans for its own portfolio but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the The Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 120 days Delinquent and for which the related senior lien mortgage loan is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then the Trustee shall enforce the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is 66 hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp Asset Back Certs Ser 03-2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Responsible Party under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of the Responsible Party to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Master Agreement or Assignment Agreement. If the Trustee makes a good faith determination as evidenced by an officer’s certificate delivered by the Trustee to the Trust Administrator, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trust Administrator of such failure and the Trust Administrator, with the cooperation of the Servicer, shall enforce the obligation of the Responsible Party under the Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Responsible Party fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against the Responsible Party. Notwithstanding the foregoing, to the extent that the Trustee and the Responsible Party are the same entity, the Trust Administrator shall enforce the obligations of the Responsible Party under the related Master Agreement pursuant to the terms of this paragraph. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Nc1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-above- described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trustee or any of them, and upon notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would affect the lien position of the Mortgage Loan. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trust Administrator a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trust Administrator on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee, the Trust Administrator and the Certificateholders, shall enforce the obligations of the Originator and the Seller under the Mortgage Loan Purchase Agreement, including, without limitation, any obligation of the Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brother Mort Sec Inc Sal Hm Eq Ln Tr Ser 2002 Wmc2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust, the Certificateholders and the Trustee or any of them, and upon notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances 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 Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC of the REMICs created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trust Administrator an Officers' Certificate substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class X Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class X Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class X Certificates, by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement signed by NC Capital, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of NC Capital contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ace Securities Corp Ho Eq Lo Tr Se 2001-Nc1 as Ba Pa Th Ce)
Servicer to Act as Servicer. Unless otherwise specified, all references to actions to be taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to "the Collection Account" or "the Escrow Account" shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable or (iv) the collection of such Prepayment Charge would be considered "predatory" pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii) or (iv) above, then, upon notification from the Servicer that the related Prepayment Charge was waived because (i) the collection of such Prepayment Charge would be in violation of applicable laws, (ii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable or (iii) the collection of such Prepayment Charge would be considered "predatory" pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters (which, in each case, shall constitute a breach of a representation or warranty by the related Originator under the related Master Agreement), then the Trustee shall, in accordance with the procedures set forth in Section 2.03, enforce the obligation of the related Originator to pay the amount of such waived Prepayment Charge to the related Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the related Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee and the Depositor shall consult on further actions to be taken against such Originator. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2004-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Sub- Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trustee, and upon notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under each Primary Mortgage Insurance Policy and any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advanceshall, following consultation with the Servicer shall related Mortgagor, advance or cause to be advanced funds as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged PropertiesProperties in a manner and at a time that avoids the loss of the Mortgaged Property due to a tax sale or the foreclosure of a tax lien, which advances shall be Servicing Advances 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 Servicer or by a Sub-Servicer 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding the foregoing, nothing in this Agreement shall prohibit a transfer by the Trustee of a Mortgage Loan to the Seller upon the refinancing of the Mortgage Loan through a "significant modification" within the meaning of Section 1001 of the Code. Upon such refinancing, the Purchase Price shall be remitted to the Servicer for deposit into the Collection Account, and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release to the Seller the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in its sole discretioneach case without recourse, may charge off such as the Seller shall furnish to it and as shall be necessary to vest in the Seller any Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loanreleased pursuant hereto, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer and the Trustee shall have no obligation further responsibility with regard to make any P&I Advances or Servicing Advances with respect to any Charged-off such Mortgage Loan Files. The Trustee, the Trust Administrator and the Servicer shall not be entitled to the Servicing Fee with respect to treat any such Charged-off refinancing as a prepayment in full of such Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf all purposes of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Series 2004-Hyb1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors’ rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. Any such Charged-off Mortgage Loan shall be treated If a Prepayment Charge is waived as a liquidated Mortgage Loan. The permitted by meeting the standard described in clause (iii) above, then the Servicer shall have no enforce the obligation of the related Originator to make any P&I Advances or Servicing Advances pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the related Originator) for the benefit of the Holders of the Class P Certificates. In the event of a Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trustee shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of each Originator and the Seller under the Mortgage Loan Purchase Agreements, including, without limitation, any obligation of either Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (National City Mortgage Capital LLC)
Servicer to Act as Servicer. Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Escrow Account” shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable or (iv) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters or (v) with respect to a Centex Mortgage Loans, such waiver is in accordance with the Servicer’s internal policies. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (ii), (iii) or (iv) above, then the related Servicer shall make commercially reasonable efforts to enforce the Trustee’s rights under the Assignment Agreement including the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Servicer makes a good faith determination, as evidenced by an officer’s certificate delivered by the Servicer to the Trustee, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trustee of such failure, and the Trustee shall enforce the obligation of the Originator under the Assignment Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (v) above, then Centex Home Equity Company, LLC shall deposit the amount of such waived Prepayment Charge in the Collection Account for the benefit of the Holders of the Class P Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any limited powers of attorney in the form of Exhibit I hereto and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney and shall be indemnified by the Servicer (from its own funds without any right of reimbursement from the Collection Account), for any costs, liabilities or expenses incurred by the Trustee in connection with the use or misuse of such powers of attorney. The Servicer further is hereby authorized and empowered, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan, (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Ctx1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing DatePromptly upon request, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (except for a reduction of interest or principal payments resulting from the application of the Relief Act) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may may, with respect to any second lien Mortgage Loan which is greater than 180 days Delinquent and for which the related First Lien is not a Mortgage Loan, charge off such second lien Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such second lien Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-WMC-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders Noteholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Note by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) such waiver is in accordance with the Servicer's internal policies. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Indenture Trustee's rights under the Purchase Agreement including the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. If the Servicer makes a good faith determination, as evidenced by an Officer's Certificate delivered by the Servicer to the Indenture Trustee and the Master Servicer, that the Servicer's efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Indenture Trustee and the Master Servicer of such failure, and the Master Servicer shall notify the Originator of its obligation under the Purchase Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iv) above, then the Servicer shall deposit the amount of such waived Prepayment Charge in the Collection Account for the benefit of the Holders of the Owner Trust Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Trust, is hereby authorized and empowered by the Indenture Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders Trust, the Issuing Entity, the Noteholders and the Trust FundIndenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Indenture Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansNoteholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Indenture Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any limited powers of attorney in the form of Exhibit F hereto and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney submitted to carry out such duties including a power of attorney the Indenture Trustee for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholdersexecution. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney and shall be indemnified by the Servicer (from its own funds without any right of reimbursement from the Collection Account), for any costs, liabilities or expenses incurred by the Indenture Trustee in connection with the use or misuse of such powers of attorney. The Servicer further is hereby authorized and empowered, on behalf of the Noteholders and the Indenture Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Indenture Trustee and the Noteholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Indenture Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions payments to CertificateholdersNoteholders, be added to the unpaid principal balance Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.01) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or Loan, (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicerunless, in its sole discretionany such case, may charge off such Mortgage Loan if it has made a Final Recovery Determination as provided in good faith with respect thereto (each such Mortgage LoanSection 3.07, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances the Mortgagor is in default with respect to any Charged-off the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable). In addition and notwithstanding anything in this Agreement to the contrary, neither the Servicer shall not nor the Indenture Trustee shall, under any circumstance, be entitled permitted to the Servicing Fee sell any Mortgage Loan (other than with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account exercise of an optional redemption pursuant to Section 3.10. In 8.07 of the event that Indenture or the repurchase of a Mortgage Loan Documents relating pursuant to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementSection 2.03).
Appears in 1 contract
Samples: Sale and Servicing Agreement (Newcastle Mortgage Securities Trust 2007-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. Any such Charged-off Mortgage Loan shall be treated If a Prepayment Charge is waived as a liquidated Mortgage Loan. The permitted by meeting the standard described in clause (iii) above, then the Servicer shall have no enforce the obligation of the related Originator to make any P&I Advances or Servicing Advances pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the related Originator) for the benefit of the Holders of the Class P Certificates. In the event of a Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trustee shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of each Originator and the Seller under the Mortgage Loan Purchase Agreements, including, without limitation, any obligation of either Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Commercial Mortgage Securities Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the respective Mortgage Loans, Loans and all applicable requirements law and regulations and, to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transactionhereunder. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards (the "Accepted Servicing Practices") and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon written notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.173.14, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for Servicer, and the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer under such powers of attorney and shall be indemnified by the Servicer for any cost, liability or expense incurred by the Trustee in connection with the Servicer's use or misuse of any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Accepted Servicing AdvancePractices, the Servicer shall advance make or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.093.07, and further as provided in Section 3.113.09; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.06, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising of a Principal Prepayment in connection with such full of a Mortgage Loan, the Servicer shall be entitled to may not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such provisions waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall enforce the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the Seller) for the benefit of the Holders of the Class P Certificates. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such waived Prepayment Charge (or such portion thereof as had been waived), (the "Servicer Prepayment Charge Payment Amount") for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of such disputes at the Seller contained in the Mortgage Loan Purchase Agreement. As part of its option. The Servicer may delegate its responsibilities servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of the Seller under this the Mortgage Loan Purchase Agreement; provided, howeverincluding, that no such delegation shall release without limitation, any obligation of the Servicer from the responsibilities Seller to purchase a Mortgage Loan on account of missing or liabilities arising under this Agreementdefective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ace Securities Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (B) the collection of such Prepayment Charge is prohibited by applicable law. If a Prepayment Charge is waived other than as permitted by meeting the standards described in clauses (i) and (ii) above, then as a remedy for the breach of such covenant, the Servicer shall to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates, by depositing such amount into the Collection Account together with and at the time that the amount prepaid on the related Mortgage Loan is required to be deposited into the Collection Account. Notwithstanding any other provisions of this Agreement, any payments made by the Servicer in respect of any Prepayment Charges waived other than as permitted above shall be deemed to be paid outside of the Trust Fund. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) Subject to Section 3.17, within 15 days of the Closing Date, but subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such a limited power of attorney in the form of Exhibit I, executed by each payee or last endorsee, as applicable, of each of the Mortgage Notes and each mortgagee or last assignee, as applicable, of each of the Mortgages and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name, when the Servicer believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (the “Servicing Standard”). To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan and (iii) the collection of such Prepayment Charge would be in violation of applicable laws. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (iii) above, then the Trustee shall (using reasonable commercial efforts, which may include, but shall not be limited to, initiating or pursuing legal action or other proceedings, subject to the provisions of Section 8.01 and Section 8.02)enforce the obligations of the Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates and the Depositor hereby agrees to assist and direct the Trustee in enforcing any obligations of the Originator to pay the amount of such waived Prepayment Charge under the Master Agreement.] If the Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Master Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. The Servicer hereby acknowledges that for the purposes of clause (iii) above, the law applicable to the enforcement of Prepayment Charges is the law applicable to the originator of the related Mortgage Loan. In the event the Servicer determines that (i) the foregoing acknowledgement is no longer accurate and (ii) applicable state law would prevent it from fully enforcing any Prepayment Charge, the Servicer shall (i) provide notice to the Depositor at least 30 days prior to waiving any such Prepayment Charge and (ii) provide a written opinion of counsel from a nationally recognized law firm experienced in regulatory matters concluding that fully enforcing such Prepayment Charge would violate applicable law. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to or affect the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated notify the Servicer of any such claim as a liquidated Mortgage Loansoon as practicable after receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to in all aspects of the Servicing Fee with respect to defense of such Charged-off Mortgage Loan for claims, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys’ fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer shall not be indemnified for any such cost or expense relating to claims against the Servicer and incurred by reason of its willful misfeasance, bad faith or negligence in the performance of its duties hereunder. The Servicer further is hereby authorized and empowered in its own name or in the name of the Subservicer, when the Servicer or the Subservicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the responsibilities registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or liabilities arising under this Agreementany of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable by the Trust Fund to such Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt5)
Servicer to Act as Servicer. The a. Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and agrees to act as servicer for the benefit Receivables for the Term of the Certificateholders (as determined by the Servicer this Agreement in accordance with Accepted provisions set forth herein and perform the services described in this Article III (the “Services”).
b. Servicer has implemented the Servicing PracticesPolicy which sets forth a detailed description of the Services and procedures to be undertaken in connection therewith. Following the delivery of a notice pursuant to 3.06(i)(ii) in accordance with the terms of this Agreement, the Mortgage LoansServicer shall make changes to its field call procedures, all applicable requirements as defined in the Servicing Policy, acceptable to the Administrative Agent in its sole discretion. The Servicing Policy may be not be amended or supplemented, at any time, except to the extent Owner may make or authorize such amendment or supplement in accordance with Section 6.14 of the Servicing Criteria and Accepted Servicing Practices but without regard to:Credit Agreement.
(i) any relationship that the c. Servicer, as independent contractor servicer, shall, and shall cause any related Subthird party sub-Servicer or any Affiliate of contractors to, perform the Servicer or any related Sub-Servicer may have Services and administer the Receivables in accordance with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoingApplicable Requirements, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards Servicing Policy and the other terms of this Agreement and of the respective Mortgage Loans, the Agreement. Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02alone, to do or cause to be done any and all things in connection with such servicing and administration which it that Servicer may deem necessary or desirabledesirable and consistent with the terms of this Agreement and Applicable Law. Without limiting the generality of the foregoing, the Servicer Services shall include the following (in each case, as applicable, consistent with the Applicable Requirements, the Servicing Policy and the Credit Agreement):
i. issue periodic payment instructions to the Obligor, which shall include, but not necessarily be limited to, disclosure of the remaining principal owed and the principal and interest components of the current payment, directing that payments on the Receivables be made in accordance with the Cash Management System;
ii. issue payoff demand with respect to any default of any Receivables;
iii. enforce Owner’s rights under the Dealer Agreements;
iv. answer Obligors’ inquiries, demands and requests;
v. collect and post all payments on, or in respect of, the Receivables;
vi. account for Collections on, or in respect of, the Receivables;
vii. direct Collections on deposit in the name Servicer Accounts or Lockbox Account to be remitted to the Collection Account in accordance with the Cash Management System;
viii. contact delinquent Obligors;
ix. prepare Borrowing Base Report and Certificates and Monthly Servicing Reports with Receivables information, activity, performance and net settlement details; and
x. perform the other duties specified herein.
d. Consistent with the Applicable Requirements, the Servicing Policy and the other terms of this Agreement, Servicer may only (i) waive, modify or vary any term of any Receivables or consent to the postponement of strict compliance with any such term or in any manner forbear from acting against any Obligor, and (ii) as to any Receivables, waive any late payment charge, penalty, or default interest, or other similar fees which may be collected in the ordinary course of servicing such Receivables, if, in either case, such waiver or modification is permitted by the Servicing Policy and the Credit Agreement. In no event shall the principal balance of a Receivable be reduced or the interest rate or the amount of a Scheduled Receivable Payment altered in each case, other than to the extent such reduction or alteration is (1) required by Applicable Law, (2) approved by the Administrative Agent and the Required Lenders or (3) with respect to any reduction in principal, in connection with a settlement if the Receivable has become a Charged-Off Receivable. If after the date hereof, an Obligor’s obligation under a Receivable has been modified in accordance with this Section 3.01(d) so as to differ from the amount specified in such Receivable, the Scheduled Receivable Payment with respect to any subsequent Collection Period shall refer to the Obligor’s payment obligation with respect to such Collection Period as so modified and such modification shall be reflected in the Receivable Database pursuant to the terms of this Agreement. Without limiting the generality of the Trust foregoing, Servicer shall continue, and is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveempowered, to execute and deliver, deliver on behalf of the Certificateholders itself and the Trust FundOwner, any and all instruments of satisfaction or cancellation, or of partial or full release or dischargerelease, discharge and all other comparable instruments, with respect to the Mortgage Loans Receivables. Owner shall, as necessary, promptly furnish Servicer with such powers of attorney as are necessary and the Mortgaged Properties appropriate and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of with such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunderunder this Agreement.
e. In servicing and administering the Receivables, Servicer shall comply with the Servicing Policy and Applicable Requirements and employ procedures and exercise the same care that it customarily employs and exercises in servicing and administering loans for its own account. In servicing and administering the Receivables, Servicer may permit any Governmental Authority to have access to and review and copy the files of Servicer with respect to the Receivables, and Servicer is authorized to do whatever is necessary to comply with all Applicable Laws and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power requirements of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose Governmental Authority, including, without limitation, any required modifications of the related Mortgaged Properties after foreclosure on behalf Receivables documents.
f. Servicer is hereby authorized to commence, in its own name or in the name of the Trust Fund and the CertificateholdersOwner, a legal proceeding to enforce a Receivable or to commence or participate in any other legal proceeding (including, without limitation, a bankruptcy proceeding) relating to or involving a Receivable or an Obligor. The Trustee If Servicer commences or participates in such a legal proceeding in its own name, Owner shall execute a separate power of attorney in favor of the Servicer thereupon be deemed, to the extent furnished required by law or as a condition to the Trustee by the such legal proceeding, to have automatically assigned such Receivable to Servicer and/or each Sub-Servicer solely for the purposes described herein to the extent necessary of commencing or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer participating in any such proceeding as a party or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraphclaimant, and provided that the Servicer shall not be required is authorized and empowered by Owner to make execute and deliver in Owner’s name any nonrecoverable Servicing Advancenotices, the Servicer shall advance demands, claims, complaints, responses, affidavits 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 Servicing Advances 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 Servicer other documents or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received instruments in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreementproceeding.
Appears in 1 contract
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust, the Certificateholders and the Trustee or any of them, and upon notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would affect the lien position of the Mortgage Loan. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC of the Trust REMICs created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trust Administrator a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class OCF Certificateholder (in the case of a Group I Mortgage Loan) or to the Class OCV Certificateholder (in the case of a Group II Mortgage Loan). Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class PF Certificates (in the case of a Group I Mortgage Loan) or the Class PV Certificates (in the case of a Group II Mortgage Loan) in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class PF Certificates or the Class PV Certificates, as applicable, by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trust Administrator on behalf of the Trust and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee, the Trust Administrator and the Certificateholders, shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement, including, without limitation, any obligation of the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Inc Salomon Home Equ Ln Tr 2001-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) (a) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (b) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally or the collectability thereof shall have been limited due to acceleration in connection with a foreclosure or other involuntary payment, (ii) the collection of such Prepayment Charge would be in violation of applicable laws or (iii) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii) or (iii) above and a representation or warranty regarding such Prepayment Charge has been breached, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the Originator under the Mortgage Loan Purchase Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of the Sponsor to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the Mortgage Loan Purchase Agreement. If the Sponsor fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee, the Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against the Sponsor. If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. The Servicer (or a Sub-Servicer servicing the Mortgage Loans on its behalf) has fully furnished and will continue to fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information (e.g., favorable and unfavorable) on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company or their successors on a monthly basis.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Mortgage Loans and any insurance policies related thereto, (ii) all Applicable Regulations and (iii) the terms of this Agreement, the Mortgage Loans, all applicable requirements giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (the "Servicing Standard"). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Mortgage Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.026.06, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when and shall be responsible for, in each case, to the Servicer believes it appropriate in its best judgment extent provided for under this Agreement and in accordance with the servicing standards set forth above, (i) to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and Properties, (ii) to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, in the name of the Trust Fund, on behalf of the Trust Fund Trustee and Certificateholders and the Certificateholders, (iii) to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, (iv) to bring or respond to civil actions or complaints (in its own name or that of the TrustTrust Fund or the Trustee on behalf of the Trust Fund) related to any Mortgage Loan, Mortgaged Property or REO Property held by the Trust Fund and (v) to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03, At the Servicer shall represent and protect the interests written request of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17Servicer, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder. By execution of this Agreement, and the Trustee Trustee, on behalf of the Trust Fund, hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located the form of Exhibit I hereto, to enable execute any and all documents necessary to carry out any and all servicing duties described in this Agreement (including the Servicer taking of and transferring title of REO Properties to take title and dispose third parties held in the name of the related Mortgaged Properties after foreclosure on behalf Trustee for the benefit of the Trust Fund Trust) and expressly confirms that this paragraph along with the Certificateholders. The Trustee face page and a copy of the signature page (duly executed) to this Agreement shall execute a separate constitute the power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards terms of this Agreement, the preceding paragraphServicer may waive, and provided that modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Standard; provided, however, that:
(A) the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03);
(B) nor shall the Servicer shall not permit any modification with respect to any Mortgage Loan that would change the Mortgage Rate, defer or forgive the payment of any principal or interest payments, reduce the outstanding Stated Principal Balance (iexcept for reductions resulting from actual payments of principal) except or extend the final maturity date on such Mortgage Loan (unless as provided in Section 3.073.02, when (i) the related Mortgagor is in default with respect to such the Mortgage Loan or (ii) such default is, in the judgment of the Servicer, reasonably foreseeable); and
(C) the Servicer shall not consent to (i) partial releases of Mortgages, permit any (ii) alterations, (iii) removal, demolition or division of properties subject to Mortgages, (iv) modification or (v) second mortgage subordination agreements with respect to any related Mortgage Loan that would change would: (i) affect adversely the related Mortgage Ratestatus of any Trust REMIC as a REMIC,(ii) cause any Trust REMIC to be subject to a tax on "prohibited transactions" or "contributions" pursuant to the REMIC Provisions, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (iiiii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (Ax) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (By) cause any Trust REMIC constituting part of the Trust Fund to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “contributions "contributions" after the startup date” Startup Day under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. All references to Servicer in this Agreement shall be deemed to include any Sub-Servicer duly appointed by the Servicer pursuant to this Agreement.
Appears in 1 contract
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Issuer and in the best interests of and for the benefit of the Certificateholders Securityholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Loans and any insurance policies related thereto, (ii) all Applicable Regulations, (iii) the terms of this Servicing Agreement, and (iv) to the Mortgage Loansextent consistent with the preceding requirements, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer Subservicer or any Affiliate of the Servicer or any related Sub-Servicer Subservicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Security by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-ServicerSubservicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (all of the foregoing, the “Servicing Standard”). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage LoansServicing Standard, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Subservicers as provided in Section 3.026.05, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Subservicer is hereby authorized and empowered by the Indenture Trustee when to and shall, to the Servicer believes it appropriate in its best judgment extent provided for under this Servicing Agreement and in accordance with the servicing standards set forth aboveServicing Standard, to (i) execute and deliver, on behalf of the Certificateholders Noteholders and the Trust FundIndenture Trustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to Properties, (ii) institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to (iii) market, sell and transfer title of REO Properties held in the name of included the Trust Fund Estate to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, to (iv) bring or respond to civil actions or complaints related to any Loan, Mortgaged Property or REO Property included in the Trust Estate and (in its own name or that of the Trustv) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03At the written request of the Servicer, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Indenture Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder. By execution of this Servicing Agreement, the Issuer and the Indenture Trustee hereby grants grant to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which the form of Exhibit B hereto, to execute any and all documents necessary to carry out any and all servicing duties described in this Servicing Agreement (including the taking of and transferring title of REO Properties to third parties) and expressly confirms that this paragraph along with the face page and a related Mortgaged Property is located to enable the Servicer to take title and dispose copy of the related Mortgaged Properties after foreclosure on behalf of signature page (duly executed) to this Servicing Agreement shall constitute the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Indenture Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Subservicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards terms of this Servicing Agreement and with respect to any Loan that is Delinquent or in default, the preceding paragraphServicer may waive, and provided that modify or vary any term of any Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Standard; provided, however, that:
(i) the Servicer shall not be required to make any nonrecoverable Servicing Advance, future advances (except P&I Advances); and
(ii) the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Loan Rate, defer or forgive the payment of any principal or interest payments, reduce or increase the principal balance outstanding Principal Balance (except for reductions resulting from actual payments of principal) or change extend the final maturity date on such Mortgage Loan (unless as provided in Section 3.02, (i) the Mortgagor is Delinquent or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, Mortgagor is in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances default with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option). The Servicer may delegate any of its responsibilities under this Servicing Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Servicing Agreement. All references to Servicer in this Servicing Agreement shall be deemed to include any Subservicer duly appointed by the Servicer pursuant to this Servicing Agreement. Consistent with the foregoing and this Servicing Agreement, the Servicer shall seek to maximize the collection of amounts due, and minimize losses that might be incurred, in connection with any Loan. For any Delinquent or defaulted Loan, the Servicer (a) shall pursue collection from the related Mortgagor of all amounts due under the terms of such Loan, (b) at such time as in the judgment of the Servicer such collection efforts have been exhausted but in no case to exceed a period of __ months since such Loan became Delinquent, the Servicer shall consider other workout activities pursuant to Section 3.02 to maximize collections and minimize losses, and (c) at such time as in the judgment of the Servicer such workout activities have been exhausted, the Servicer shall seek all other remedies that in its best judgment are available to maximize collections and minimize losses through foreclosure sale in respect of Mortgaged Properties or through any legal action brought to obtain judgment against the related Mortgagor or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity.
Appears in 1 contract
Samples: Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(iA) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(iiB) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iiiC) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(ivD) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (ii) the collection of such Prepayment Charge would be in violation of applicable laws. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust Fund is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney for each county in which a Mortgaged Property is located and other documents as are necessary or appropriate to enable the Servicer or any Sub-Sub- Servicer to carry out their servicing and administrative duties hereunder; PROVIDED, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its reasonable judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Se 03 WMC)
Servicer to Act as Servicer. Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Escrow Account” shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (the “Servicing Standard”). To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (iii) or (iv) above, then the Servicer shall make commercially reasonable efforts to attempt to enforce the obligations of the related Originator under the related Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Servicer shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement. If the Servicer makes a good faith determination as evidenced by an officer’s certificate delivered by the Servicer to the Trustee, that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trustee of such failure and the Trustee, with the cooperation of the Servicer, shall enforce the obligation of the related Originator under the related Master Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Servicer and the Originator are the same entity, the Trustee shall enforce the obligations of the related Originator under the related Master Agreement pursuant to the terms of this paragraph. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to or affect the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated notify the Servicer of any such claim as a liquidated Mortgage Loansoon as practicable after receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to in all aspects of the Servicing Fee with respect to defense of such Charged-off Mortgage Loan for claims, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys’ fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer from shall not be indemnified for any such cost or expense relating to claims against the responsibilities Servicer and incurred by reason of its willful misfeasance, bad faith or liabilities arising under this Agreementnegligence in the performance of its duties hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Master Servicer and the Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Monthly Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee or any of them, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when unless the related Mortgagor is in default with respect to such the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, ) permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any the REMIC Trust to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (the “Servicing Standard”). To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan or (iii) the collection of such Prepayment Charge would be in violation of applicable laws. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Trustee’s rights under the Mortgage Loan Purchase Agreement including the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Servicer makes a good faith determination that the Servicer’s efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trustee of such failure, and the Trustee, with the cooperation of the Servicer, shall enforce the obligation of the Seller under the Mortgage Loan Purchase Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If the Seller fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee, the Servicer and the Depositor shall consult on further actions to be taken against the Seller. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of Subject to Section 3.17, on the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions by the Servicer or any Sub-Servicers under such powers of attorney. Subject only to the above-described servicing standards and the terms of this Agreement and of the Mortgage Loans, the Servicer shall have full power and authority, acting alone or through Sub-Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the Servicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trustee and Certificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Subject to Section 3.17, within five (5) days of the Closing Date, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer any special or limited powers of attorney and other documents necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, such limited powers of attorney or other documents shall be prepared by the Servicer and submitted to the Trustee for execution. The Trustee shall not be liable for the actions by the Servicer or any Sub-Servicers under such power powers of attorney. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS® System, or cause the removal from the registration of any Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS® System, shall be reimbursable to the Servicer by withdrawal from the Collection Account pursuant to Section 3.11. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The ServicerServicer shall also undertake to defend, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such to a claim against the Trustee or the Trust, any claims against the Trust, the Trustee or itself by a Mortgagor which relate to or affect the servicing of any Mortgage Loan, a “Charged-off Mortgage Loan”). Any This shall not be construed as an assumption of liability in such Charged-off Mortgage Loan matters. The Trustee shall be treated notify the Servicer of any such claim as a liquidated Mortgage Loansoon as practicable after receiving notice of such claim. The Servicer shall have no obligation to make not be liable for any P&I Advances or Servicing Advances with respect delay in responding to any Charged-off Mortgage Loan and claim of which it has not received timely notice. The Trustee shall cooperate with the Servicer shall not be entitled to in all aspects of the Servicing Fee with respect to defense of such Charged-off Mortgage Loan for claims, including the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10timely delivery of all relevant litigation files and other related information. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions acts on behalf of the Trustee, the Trust or itself in any such litigation, the Trust shall pay all costs and to send written notice expenses (including attorneys’ fees, court costs, settlements and judgments) associated with the defense and management of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreementclaim; provided, however, that no such delegation shall release the Servicer from shall not be indemnified for any such cost or expense relating to claims against the responsibilities Servicer and incurred by reason of its willful misfeasance, bad faith or liabilities arising under this Agreementnegligence in the performance of its duties hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2006-Ff8)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Indenture Trustee and in the best interests of and for the benefit of the Certificateholders Noteholders and the Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate Security by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Monthly Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate reasonably necessary in its best judgment in accordance order to comply with the its servicing standards set forth aboveduties hereunder, to execute and deliver, on behalf of the Certificateholders Indenture Trustee and the Trust FundNoteholders or any of them, and upon notice to the Indenture Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03Indenture Trustee, the Servicer shall represent Noteholders and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansInsurer. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days Subject to Section 3.19, the Indenture Trustee shall execute, at the written request of the Closing DateServicer, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Indenture Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer Servicers in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating distributions the Stated Principal Balance of a Mortgage Loan or payments to CertificateholdersNoteholders, be added to the unpaid principal balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer shall carry out its duties and perform its obligations, and will take all actions permitted hereunder, and refrain from taking actions, in each case in a manner that will permit the Trust to qualify as a REIT. Without limiting the foregoing, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC the Trust to fail to qualify as a REMIC REIT under the Code or the imposition of any tax on “"prohibited transactions” or “contributions after the startup date” " under the REMIC REIT Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s 's or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer (a) shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes and (b) shall waive (or permit a Sub- Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans, (ii) such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (iii) the collection of such Prepayment Charge would be in violation of applicable laws or (iv) such waiver is in accordance with the Servicer's internal policies. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall make commercially reasonable efforts to enforce the Trustee's rights under the Assignment Agreement including the obligation of the Originator to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account for the benefit of the Holders of the Class P Certificates. If the Servicer makes a good faith determination, as evidenced by an officer's certificate delivered by the Servicer to the Trustee, that the Servicer's efforts are not reasonably expected to be successful in enforcing such rights, it shall notify the Trustee of such failure, and the Trustee shall enforce the obligation of the Originator under the Assignment Agreement to pay to the Servicer the amount of such waived Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iv) above, then the Servicer shall deposit the amount of such waived Prepayment Charge in the Collection Account for the benefit of the Holders of the Class P Certificates. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Sub- Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer Servicer, in the name of the Trust Fund, is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveServicing Standard, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen Subject to Section 3.17, within five (155) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such any limited powers of attorney in the form of Exhibit I hereto and other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of by the Servicer or any Sub-Servicer Servicers under such power powers of attorney and shall be indemnified by the Servicer (from its own funds without any right of reimbursement from the Collection Account), for any costs, liabilities or expenses incurred by the Trustee in connection with the use or misuse of such powers of attorney. .. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing AdvanceServicer, the Servicer on escrowed accounts, 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 Stated Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.034.04) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance Stated Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan, (unless, in any such case, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chec Loan Trust 2004-1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee or any of them, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances 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 Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC of the REMICs created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee an Officers' Certificate substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class X Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class X Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class X Certificates, by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust and to send written notice of such waiver Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement signed by the Originator, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trustee shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 1999-NCC)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria Loans and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) Trust and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable non recoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders and the Class A2-B Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders Certificateholders, the Class A2-B Certificate Insurer and the Trust Fund, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesCertificateholders. Subject to Section 6.03, the The Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects protect its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund Trustee and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this Agreement, Agreement and the Mortgage LoansLoans and, all applicable requirements to the extent consistent with such terms, in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.023.02 hereof, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee Trustee, when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.173.17 hereof, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such any special or limited powers of attorney and other documents as are prepared by the Servicer and necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder; provided, and the Trustee hereby grants to however, such limited powers of attorney or other documents shall be prepared by the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished submitted to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderexecution. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Notwithstanding anything to the contrary herein, the Servicer shall undertake to defend claims against the Trust, the Trustee and/or itself by a Mortgagor or otherwise related to the servicing of any Mortgage Loans. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.113.11 hereof. Any cost incurred by the Servicer or by a Sub-Servicer 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 Principal Balance of the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Loan Rate, reduce or increase the principal balance Principal Balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07 hereof, the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect cause an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Adverse REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its optionEvent. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Provident Funding Mortgage Pass-Through Cert Series 2003-1)
Servicer to Act as Servicer. (a) The Servicer shall service and administer the Mortgage Loans Receivables on behalf of the Trust Fund Borrower and in the best interests of and Administrator (for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing PracticesLender Secured Parties) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or and/or through a Sub-Servicer or Sub-Servicers, as the case may be, subservicers as provided in Section 3.0211.2.2(c), to do or cause to be done any and all things which it may deem reasonably necessary or desirable in connection with such servicing and administration and which it are consistent with this Agreement. Consistent with the terms of this Agreement, Servicer may deem necessary waive, modify or desirablevary any term of any Receivable or consent to the postponement of strict compliance with any such term or in any manner, grant indulgence to any Obligor if, in Servicer’s reasonable determination, such waiver, modification, postponement or indulgence is not materially adverse to the interests of the Borrower or the Administrator (for the benefit of the Lender Secured Parties); provided, however, that the Servicer may not permit any modification with respect to any Receivable that would reduce the Unpaid Balance (except for actual payments thereof), or extend the due date thereof, except that the Servicer may take such actions with respect to Defaulted Receivables if such actions will, in the Servicer’s reasonable business judgment, maximize the Collections thereof. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust Borrower is hereby authorized and empowered by the Trustee Borrower when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundBorrower, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, discharge and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints Receivables.
(in its own name or that of the Trustb) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans Receivables by employing such procedures (including collection procedures) and degree of care, in each case consistent with applicable law, with the Credit and Collection Policy and with prudent industry standards, as are customarily employed by Servicer in servicing and administering receivables owned or serviced by Servicer comparable to the Receivables. Servicer shall not take any action to impair Administrator’s (for the benefit of the Lender Secured Parties) security interest in any Receivable, except to the extent allowed pursuant to this Agreement or required by law.
(c) Servicer may perform any of its duties pursuant to this Agreement, including those delegated to it pursuant to this Agreement, through subservicers appointed by Servicer, provided that such subservicing arrangements may be terminated, at Administrator’s discretion, upon the replacement of G&K as Servicer. Such subservicers may include Affiliates of Servicer. Notwithstanding any such delegation of a duty, Servicer shall remain obligated and liable for the performance of such duty as if Servicer were performing such duty.
(d) Servicer may take such actions as are necessary to discharge its duties as Servicer in accordance with applicable law this Agreement, including the power to execute and shall provide to the Mortgagors any reports required to deliver on behalf of Borrower such instruments and documents as may be provided to them thereby. The Servicer shall also comply customary, necessary or desirable in connection with the performance of Servicer’s duties under this Agreement with all reasonable rules (including consents, waivers and requirements discharges relating to the Receivables).
(e) Servicer shall keep separate records covering the transactions contemplated by this Agreement, including the identity and collection status of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, Receivable purchased by Borrower from an Originator and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementPurchase Price Credits.
Appears in 1 contract
Samples: Loan Agreement (G&k Services Inc)
Servicer to Act as Servicer. The Unless otherwise specified, all references to actions to be taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by the related Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by “the Servicer” under this Article III or any other provision of this Agreement with respect to “the Collection Account” or “the Servicing Account” shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or an escrow Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. Wxxxx Fargo shall service and administer the Wxxxx Fargo Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. JPMorgan shall service and administer the JPMorgan Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by JPMorgan in its reasonable judgment) in accordance with the JPMorgan Servicing Standard and the respective Mortgage Loans. Option One shall service and administer the Option One Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by Option One in its reasonable judgment) in accordance with the Option One Servicing Standard and the respective Mortgage Loans. To the extent consistent with the foregoing, the Servicer (a) shall seek the timely and complete recovery of principal and interest on the Mortgage Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and such waiver relates to a default or a reasonably foreseeable default and would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan, (ii) the collection of such Prepayment Charge would be in violation of applicable laws, (iii) the amount of the Prepayment Charge set forth on the Prepayment Charge Schedule is not consistent with the related Mortgage Note or is otherwise unenforceable, (iv) the Servicer has not received information and documentation sufficient to confirm the existence or amount of such Prepayment Charge or (v) the collection of such Prepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters. If a Prepayment Charge is waived as permitted by meeting the standard described in clauses (ii), (iii) or (iv) above, then, the Trustee shall make commercially reasonable efforts to attempt to enforce the obligations of the related Originator under the Master Agreement to pay the amount of such waived Prepayment Charge, for the benefit of the Holders of the Class P Certificates; provided, however, that the Trustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Assignment Agreement or the Mortgage Loan Purchase Agreement. If such Originator fails to pay the amount of such waived Prepayment Charge in accordance with its obligations under the related Master Agreement, the Trustee, Trust Administrator, the Servicer and the Depositor shall consult on further actions to be taken against such Originator. Notwithstanding the foregoing, to the extent that the Trustee and the related Originator are the same entity, the Trust Administrator shall enforce the obligations of the related Originator under the related Master Agreement pursuant to the terms of this paragraph. If a Prepayment Charge is waived other than in accordance with (i) through (v) above, the Servicer shall pay the amount of such waived Prepayment Charge to the Trust Administrator for deposit in the Distribution Account for the benefit of the Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment Amount”). To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards (with respect to Wxxxx Fargo) or to the JPMorgan Servicing Standard (with respect to JPMorgan) or to the Option One Servicing Standard (with respect to Option One) and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.02, 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 of the foregoing, the Servicer in its own name or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth (with respect to Wxxxx Fargo) or to the JPMorgan Servicing Standard (with respect to JPMorgan) or to the Option One Servicing Standard (with respect to Option One) above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund Trustee and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderduties. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 permitpermit provided, however, that (subject to Section 3.07) the Servicer may capitalize the amount of any Servicing Advances incurred pursuant to this Section 3.01 in connection with the modification of a Mortgage Loan. The Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS System, or cause the removal from the registration of any Mortgage Loan on the MERS System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses (i) incurred as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS System or (ii) if the affected Mortgage Loan is in default or, in the judgment of the Servicer, such default is reasonably foreseeable, incurred in connection with the actions described in the preceding sentence, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer shall not (i) permit any modification with respect to any Mortgage Loan (except as provided in Section 3.07, when the related Mortgagor with respect to a Mortgage Loan that is in default with respect to such Mortgage Loan or such default isor, in the judgment of the Servicer, such default is reasonably foreseeable, permit any modification with respect to any related Mortgage Loan ) that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-He1)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trustee or any of them, and upon written notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney substantially in the form attached hereto as Exhibit B and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. Any such Charged-off Mortgage Loan shall be treated If a Prepayment Charge is waived as a liquidated Mortgage Loan. The permitted by meeting the standard described in clause (iii) above, then the Servicer shall have no enforce the obligation of the Originator to make any P&I Advances or Servicing Advances pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the Originator) for the benefit of the Holders of the Class P Certificates. In the event of a Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee and the Trust Administrator a certification of a Servicing Officer substantially in the form of Exhibit J no later than the third Business Day following the immediately succeeding Determination Date with a copy to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Originator or the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify that such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as not being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of the Originator and the Seller under the Mortgage Loan Purchase Agreements, including, without limitation, any obligation of the Originator or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mort Loan Trust Inc Asset Bk Pas THR Ce Se 03 He2)
Servicer to Act as Servicer. (a) The Servicer shall service and administer the Mortgage Loans Contracts on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or and/or through a Sub-Servicer or Sub-Servicers, as the case may be, Subservicers as provided in Section 3.02, to do or cause to be done any and all things which it may deem necessary or desirable in connection with such servicing and administration and which it are consistent with this Agreement. Consistent with the terms of this Agreement, the Servicer may deem necessary waive, modify or desirablevary any term of any Contract or consent to the postponement of strict compliance with any such term or in any manner, grant indulgence to any Obligor if, in the Servicer's sole determination, which shall be conclusive and binding, such waiver, modification, postponement or indulgence is not materially adverse to the Certificateholders or the Certificate Insurer; provided however, that the Servicer may not permit any modification with respect to any Contract that would change its Contract Rate, defer the payment of any principal or interest (except to the extent permitted by Section 3.06(a)), reduce the outstanding principal balance (except for actual payments of principal), or extend (except to the extent permitted by Section 3.06(a)) the final maturity date on such Contract. Without limiting the generality of the foregoing, the Servicer in its own name or in the name of the Trust Transferor is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust FundTrust, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, discharge and all other comparable instruments, with respect to the Mortgage Loans Contracts and with respect to the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert Financed Vehicles; provided however, that notwithstanding the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03foregoing, the Servicer shall represent not, except pursuant to an order from a Court of competent jurisdiction, release an Obligor from payment of any unpaid amount under any Contract or waive the right to collect the unpaid balance of any Contract from the Obligor, except that the Servicer may forego collection efforts if the amount subject to collection is de minimis and protect if it would forego collection in accordance with its customary procedures. If any Contract contains a "due-on-sale" provision allowing the interests holder thereof to accelerate the Contract upon sale of the Trust Fund in Financed Vehicle financed thereunder, the same manner Servicer shall take reasonable steps under the circumstances to enforce such due on sale provision if a Financed Vehicle is sold as it protects its own interests in mortgage loans in its own portfolio with respect soon as practicable after determining that such Financed Vehicle has been sold; provided however, that the Servicer shall not be obligated to take any claim, proceeding or litigation regarding the Mortgage Loans. legal action to enforce such provision.
(b) The Servicer shall service and administer the Mortgage Loans Contracts by employing procedures (including collection procedures) and a degree of care consistent with prudent industry standards and as are customarily employed by servicers in accordance with applicable law servicing and shall provide administering motor vehicle retail installment sales contracts and notes comparable to the Mortgagors any reports required to be provided to them therebyContracts. The Servicer shall also comply take all actions (other than those required to be taken by the Transferor pursuant to this Agreement) that are necessary or desirable to maintain continuous perfection and first priority of security interests granted by the obligors in the Financed Vehicles to NAFCO or ACCH, as the case may be, and to maintain continuous perfection of the security interest created by each Contract in the related Finance Vehicle on behalf of the Trustee, including, but not limited to, using reasonable efforts to obtain execution by the Obligors and the recording, registering, filing, re-recording, re-registering and refiling of all Title Documents (it being understood that Title Documents have not been and need not be endorsed or delivered to the Trustee and do not and need not identify the Trustee as the secured party or lienholder with respect to the Contracts), security agreements, financing statements, continuation statements or other instruments as are necessary to maintain the security interests granted by the Obligors under the respective Contracts on behalf of the Trustee; provided however, that the Servicer is not required to expend any of its own funds to remove any security interest, lien or other encumbrance on any Financed Vehicle. The Servicer shall not take any action to impair the Trust's rights in any Contract, except to the extent allowed pursuant to this Agreement or required by law. The Financed Vehicle securing each Contract shall not be released in whole or in part from the security interest granted by the Contract, except upon payment in full of the Contract or as otherwise contemplated herein. The Servicer shall not extend or otherwise amend the terms of any Contract, except in accordance with Section 3.01(a). Upon discovery by either the Servicer, a Responsible Officer of the Trustee or any Subservicer of a default by the Servicer in the performance of its obligations under this Agreement with all reasonable rules Section 3.01(b) which materially and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days adversely affects the interests of the Closing DateCertificateholders or the Certificate Insurer in the related Contract, but subject the party discovering such breach shall give prompt written notice thereof to Section 3.17the other parties and the Certificate Insurer. If the Servicer does not correct or cure such default by the Reporting Date occurring during the second full calendar month following the calendar month in which the Trustee was notified or the Servicer, the Trustee shall execute and furnish to or the Servicer and any Sub-Servicer Subservicer became aware, if earlier, of such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunderdefault, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that then the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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 promptly purchase such Mortgage Loan so permit. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement.Contract
Appears in 1 contract
Samples: Pooling and Servicing Agreement (National Auto Finance Co Inc)
Servicer to Act as Servicer. The Servicer Servicer, as an independent contractor, shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of REO Properties and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through the utilization of a Sub-Servicer Subservicer or Sub-Servicers, as the case may be, as provided a Subcontractor in accordance with Section 3.024.25, to do or cause to be done any and all things in connection with such servicing and administration which it the Servicer may deem necessary or desirable, in each case consistent with the terms of this Agreement and in accordance with Accepted Servicing Practices. To the extent of any conflict between this Agreement and Accepted Servicing Practices, the Accepted Servicing Practices shall control. The Servicer shall be responsible for any and all acts of a Subservicer and a Subcontractor, and the Servicer’s utilization of a Subservicer or a Subcontractor shall in no way relieve the liability of the Servicer under this Agreement. Consistent with the terms of this Agreement and subject to Accepted Servicing Practices in all respects, the Servicer may waive, modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if in the Servicer’s reasonable and prudent determination such waiver, modification, postponement or indulgence is not materially adverse to the Owner or any Certificateholder. Without limiting the generality of the foregoing, the Servicer in the name of the Trust shall continue, and is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth aboveempowered, to execute and deliver, deliver on behalf of the Certificateholders itself and the Trust FundOwner, any and all instruments of satisfaction or cancellation, or of partial or full release or dischargerelease, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders subject to, and in accordance with with, the terms and provisions of this Agreement and Accepted Servicing Practices. If reasonably required by the Servicer, to bring or respond to civil actions or complaints the Owner shall furnish the Servicer, within five (5) Business Days of Servicer’s request, any powers of attorney (substantially in its own name or that the form of the TrustExhibit G) and other documents, in each case in form and substance satisfactory to execute any other document the Owner and the Administrator, necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties under this Agreement. Subject The Servicer shall, as and when directed by the Administrator or the Owner, register in its own name on the MERS System, or cause the removal from MERS registration of any Mortgage Loan on the MERS System, and shall execute and deliver, on behalf of the Owner, any and all instruments of assignment and other comparable instruments with respect to Section 6.03such assignment or re-recording of a Mortgage in the name of MERS. In servicing and administering the Mortgage Loans and REO Properties, the Servicer shall represent employ procedures (including collection procedures) and protect the interests of the Trust Fund in exercise the same manner as care that it protects its own interests customarily employs and exercises in servicing and administering similar mortgage loans for itself so long as such procedures are in its own portfolio accordance with respect to any claim, proceeding or litigation regarding Accepted Servicing Practices and do not conflict with the Mortgage Loansexpress terms of this Agreement. The Servicer shall service and administer cause to be maintained for each Cooperative Loan a copy of the Mortgage Loans in accordance with applicable law financing statements and shall provide to the Mortgagors file any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules such financing statements and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents continuation statements as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereofnecessary, in accordance with the standards Uniform Commercial Code applicable in the jurisdiction in which the related Cooperative Apartment is located, to perfect and protect the security interest and lien of the preceding paragraph, and provided that the Servicer shall not be required Owner. Subject to make any nonrecoverable Accepted Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contraryPractices, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan or (ii) permit any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions after the startup date” under the REMIC Provisions. The Servicer, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementPrepayment Charge.
Appears in 1 contract
Samples: Servicing Agreement (Franklin Credit Holding Corp/De/)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders and the Certificate Insurer (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trustee or any of them, and upon written notice to the Trustee and the Trust FundAdministrator, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would result in the loss of the Mortgaged Property due to a tax sale or foreclosure as result of a tax lien. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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 Servicer further is authorized and empowered by the Trustee, on behalf of the Certificateholders and the Trustee, in its own name or in the name of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be, believes it is appropriate in its best judgment to register any Mortgage Loan on the MERS(R) System, or cause the removal from the registration of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and the Certificateholders or any of them, any and all instruments of assignment and other comparable instruments with respect to such assignment or re-recording of a Mortgage in the name of MERS, solely as nominee for the Trustee and its successors and assigns. Any reasonable expenses incurred in connection with the actions described in the preceding sentence or as a result of MERS discontinuing or becoming unable to continue operations in connection with the MERS(R) System, shall be subject to withdrawal by the Servicer from the Collection Account. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising of a Principal Prepayment in connection with such full of a Mortgage Loan, the Servicer shall be entitled to may not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such provisions waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, (ii)(A) the enforceability thereof is
(1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law or (iii) the Servicer has not been provided with information sufficient to enable it to collect the Prepayment Charge. If a Prepayment Charge is waived as permitted by meeting the standard described in clause (iii) above, then the Servicer shall enforce the obligation of the Seller to pay the amount of such waived Prepayment Charge to the Servicer for deposit in the Collection Account (to the extent paid by the Seller) for the benefit of the Holders of the Class P Certificates. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor, the Trust Administrator or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders and the Certificate Insurer, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of the Seller contained in the Mortgage Loan Purchase Agreement. With respect to each Mortgage Loan which is the subject of a Principal Prepayment in full, which prepayment is not accompanied by the payment of a Prepayment Charge, the Trust Administrator shall verify whether or not such disputes at its optionMortgage Loan was identified on the Mortgage Loan Schedule as being subject to a Prepayment Charge. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement, including, without limitation, any obligation of the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mort Ln Tr Asst Back Ps THR Certs Ser 2003-He3)
Servicer to Act as Servicer. Unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to a Mortgage Loan or Mortgage Loans or with respect to an REO Property or REO Properties shall be to actions to be taken or previously taken by each Servicer with respect to a Mortgage Loan or Mortgage Loans serviced thereby or with respect to an REO Property or REO Properties administered thereby. Furthermore, unless otherwise specified, all references to actions to be taken or previously taken by "the Servicer" under this Article III or any other provision of this Agreement with respect to "the Collection Account" or "the Servicing Account" shall be to actions to be taken or previously taken by each Servicer with respect to the Collection Account or the Servicing Account to be established and maintained thereby. Consistent with the foregoing, but only insofar as the context so permits, this Article III is to be read with respect to each Servicer as if such Servicer alone was servicing and administering its respective Mortgage Loans hereunder. The Servicer Servicer, as independent contract servicer, shall service and administer the Mortgage Loans on behalf in accordance with this Agreement and the normal and usual standards of the Trust Fund and in the best interests practice of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practices) in accordance with the terms servicing loans of this Agreement, the Mortgage Loans, all applicable requirements of the Servicing Criteria similar type for itself and Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement others and of the respective Mortgage Loansprudent mortgage servicers in servicing loans of similar type for themselves and for others, the Servicer and shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02alone, to do or cause to be done any and all things in connection with such servicing and administration which it the Servicer may deem necessary or desirabledesirable and consistent with the terms of this Agreement. Without limiting Consistent with the generality terms of the foregoingthis Agreement, the Servicer may waive, modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if in the name of the Trust Servicer's reasonable and prudent determination such waiver, modification, postponement or indulgence is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth above, to execute and deliver, on behalf of the Certificateholders and the Trust Fund, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect not materially adverse to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such propertiesCertificateholders; PROVIDED, and to hold or cause to be held title to such propertiesHOWEVER, on behalf of the Trust Fund and Certificateholders and to market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their servicing and administrative duties hereunder, and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power of attorney. Subject to Section 3.09 hereof, in accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan and (except as provided in Section 4.03) nor shall the Servicer unless (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such the Mortgage Loan or (ii) such default is, in the judgment of the Servicer, reasonably foreseeable, foreseeable and the Servicer has obtained the prior written consent of the Trustee) the Servicer shall not permit any modification with respect to any related Mortgage Loan that would (i) change the related Mortgage Rate, defer or forgive the payment thereof of any principal or interest payments, reduce or increase the outstanding principal balance amount (except for reductions resulting from actual payments of principal) or change extend the final maturity date on with respect to such Mortgage Loan or Loan, (ii) affect adversely the status of any Trust REMIC as a REMIC or (iii) cause any Trust REMIC to be subject to a tax on "prohibited transactions" or "contributions" pursuant to the REMIC Provisions. Notwithstanding the foregoing, the Servicer shall not permit any modification, waiver or amendment of modification with respect to any term of any related Mortgage Loan (A) that would both (Ai) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (Bii) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “contributions "contributions" after the startup date” Startup Day under the REMIC Provisions. The Servicer, in its sole discretion, may charge off Provisions or (B) extend the final maturity date of such Mortgage Loan if it has made a Final Recovery Determination in good faith beyond February 2030. Without limiting the generality of the foregoing, the Servicer shall continue, and is hereby authorized and empowered to execute and deliver on behalf of itself, and the Trustee, all instruments of satisfaction or cancellation, or of partial or full release, assumption, discharge and all other comparable instruments, with respect thereto (each such to the Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage LoanLoans and with respect to the Mortgaged Property. The Servicer shall have no obligation to make any P&I Advances or all required Servicing Advances and shall service and administer the Mortgage Loans in accordance with respect Applicable Regulations, and shall provide to the Mortgagor any Charged-off reports required to be provided to them thereby. If reasonably required by the Servicer, the Trustee shall execute and return to the Servicer any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under this Agreement and which are prepared by the Servicer and submitted to the Trustee for execution. To the extent consistent with the terms of this Agreement, the Servicer may waive (or permit a subservicer to waive) a Prepayment Charge only under the following circumstances: (i) such waiver is standard and customary in servicing similar Mortgage Loans and (ii) either (A) such waiver would, in the reasonable judgment of the Servicer, maximize recovery of total proceeds taking into account the value of such Prepayment Charge and the related Mortgage Loan and, if such waiver is made in connection with a refinancing of the related Mortgage Loan, such refinancing is related to a default or a reasonably foreseeable default or (B) such waiver is made in connection with a refinancing of the related Mortgage Loan unrelated to a default or a reasonably foreseeable default where (x) the related mortgagor has stated to the Servicer or an applicable subservicer an intention to refinance the related Mortgage Loan and (y) the Servicer shall not be entitled has concluded in its reasonable judgment that the waiver of such Prepayment Charge would induce such mortgagor to refinance with the Servicing Fee with respect Servicer. If a Prepayment Charge is waived as permitted by meeting the standards described in clauses (i) and (ii)(B) above, then the Servicer is required to pay the amount of such Charged-off Mortgage Loan waived Prepayment Charge, from its own funds without right of reimbursement, for the period following benefit of the date on which Holders of the Class P Certificates, by depositing such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in amount into the Collection Account pursuant together with and at the time that the amount prepaid on the related Mortgage Loan is required to Section 3.10be deposited into the Collection Account. In the event that servicing and administering the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage LoanLoans, the Servicer shall be entitled employ procedures including collection procedures and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account giving due consideration to waive any such provisions accepted mortgage servicing practices of prudent lending institutions and the Certificateholders' reliance on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this AgreementServicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Finan as Sec Cp SDVW Hm Eq Ln Tr 2001-2 as Bk Cer Ser 2001-2)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with the terms of this AgreementAgreement and the respective Mortgage Loans and, to the Mortgage Loansextent consistent with such terms, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, 's obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s 's right to receive compensation for its services hereunder or with respect to any particular transaction. To the extent consistent with the foregoing, the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage Notes. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage Loans, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, as provided in Section 3.02, 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 of the foregoing, the Servicer in the its own name of the Trust is hereby authorized and empowered by the Trustee when the Servicer believes it appropriate in its best judgment in accordance with the servicing standards set forth abovejudgment, to execute and deliver, on behalf of the Trust Fund, the Certificateholders and the Trust FundTrustee or any of them, and upon notice to the Trustee, 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 the Mortgaged Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, on behalf of the Trust Fund and Certificateholders and to marketTrustee, sell and transfer title of REO Properties held in for the name benefit of the Trust Fund to third-party purchasers upon terms and conditions deemed reasonable by the Servicer that are in the best interests of the Certificateholders and in accordance with Accepted Servicing Practices, to bring or respond to civil actions or complaints (in its own name or that of the Trust) and to execute any other document necessary or appropriate to enable the Servicer to carry out its duties. Subject to Section 6.03, the Servicer shall represent and protect the interests of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage LoansCertificateholders. The Servicer shall service and administer the Mortgage Loans in accordance with applicable state and federal law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject Subject to Section 3.17, the Trustee shall execute execute, at the written request of the Servicer, and furnish to the Servicer any special or limited powers of attorney and any Sub-Servicer such other documents as are necessary or appropriate to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunder, hereunder and the Trustee hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located to enable the Servicer to take title and dispose of the related Mortgaged Properties after foreclosure on behalf of the Trust Fund and the Certificateholders. The Trustee shall execute a separate power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunder. The Trustee shall not be liable for the actions of the Servicer or any Sub-Servicer under such power powers of attorney. Subject to Section 3.09 hereof, in In accordance with the standards of the preceding paragraph, and provided that the Servicer shall not be required to make any nonrecoverable Servicing Advance, the Servicer shall advance or cause to be advanced funds made Servicing Advances as necessary for the purpose of effecting the timely payment of taxes and assessments on the Mortgaged Properties, which advances Servicing Advances shall be Servicing Advances reimbursable in the first instance from related collections from the Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11; provided, however, the Servicer shall only make such Servicing Advance if the Mortgagor has made such payment as set forth in Section 3.09 or if the Mortgagor has not made such payment, if the failure to make such Servicing Advance would affect the lien position of the Mortgage Loan. Any cost incurred by the Servicer or by a Sub-Servicer in effecting the timely payment of taxes and assessments on a Mortgaged Property shall not, for the purpose of calculating the Stated Principal Balance of a Mortgage Loan or 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03) nor shall and the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, reduce or increase the principal balance (except for reductions resulting from actual payments of principal) or change the final maturity date on such Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default with respect to the Mortgage Loan or (iisuch default is, in the judgment of the Servicer, reasonably foreseeable) permit or any modification, waiver or amendment of any term of any related Mortgage Loan that would both (A) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (B) cause any REMIC of the Trust REMICs created hereunder to fail to qualify as a REMIC under the Code or the imposition of any tax on “"prohibited transactions” " or “"contributions after the startup date” " under the REMIC Provisions. The ServicerNotwithstanding anything in this Agreement to the contrary, in its sole discretionthe event of a Principal Prepayment in full of a Mortgage Loan, the Servicer may charge off not waive any Prepayment Charge or portion thereof required by the terms of the related Mortgage Note unless (i) the Servicer determines that such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each waiver would maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)(A) the enforceability thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership, or other similar law relating to creditors' rights generally or (2) due to acceleration in connection with a “Charged-off Mortgage Loan”)foreclosure or other involuntary payment, or (B) the enforceability is otherwise limited or prohibited by applicable law. Any such Charged-off Mortgage Loan shall be treated as In the event of a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances Principal Prepayment in full with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled to the Servicing Fee with respect to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received in connection with any recoveries received with respect to such Charged-off Mortgage Loan shall be deposited in the Collection Account pursuant to Section 3.10. In the event that the Mortgage Loan Documents relating to any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising in connection with such Mortgage Loan, the Servicer shall be entitled deliver to waive the Trustee a certification of a Servicing Officer substantially in the form of Exhibit J on the date of delivery of the Remittance Report pursuant to Section 4.03, and the Trustee shall forward a copy of such certification to the Class CE Certificateholder. Promptly upon the earlier of discovery by the Servicer or receipt of notice by the Servicer of the breach of the covenant of the Servicer set forth above which materially and adversely affects the interests of the Holders of the Class P Certificates in any Prepayment Charge, the Servicer shall promptly pay the amount of such provisions waived Prepayment Charge (or such portion thereof as had been waived), for the benefit of the holders of the Class P Certificates by depositing such amount into the Collection Account for distribution in accordance with the terms of this Agreement. The foregoing shall not, however, limit any remedies available to the Certificateholders, the Depositor or the Trustee on behalf of the Trust Fund and to send written notice for the benefit of such waiver the Certificateholders, pursuant to the related MortgagorMortgage Loan Purchase Agreement, although respecting a breach of the Mortgagor may still require arbitration representations, warranties and covenants of such disputes at its optionthe Originators or the Seller contained in the Mortgage Loan Purchase Agreement. The Servicer may delegate its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. As part of its servicing activities hereunder, the Servicer, for the benefit of the Trustee and the Certificateholders, shall enforce the obligations of the Originators and the Seller under the Mortgage Loan Purchase Agreement, including, without limitation, any obligation of the Originators or the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant, as described in Section 2.03(a).
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Eq Loan Trust Ser 2002 Cit1 Asst Back Pass Thru Certs)
Servicer to Act as Servicer. The Servicer shall service and administer the Mortgage Loans on behalf of the Trust Fund Trustee and in the best interests of and for the benefit of the Certificateholders (as determined by the Servicer in accordance with Accepted Servicing Practicesits reasonable judgment) in accordance with (i) the terms of the respective Mortgage Loans and any insurance policies related thereto, (ii) all Applicable Regulations, (iii) the terms of this Agreement, and (iv) to the Mortgage Loansextent consistent with the preceding requirements, all applicable requirements in the same manner in which it services and administers similar mortgage loans for its own portfolio, giving due consideration to customary and usual standards of the Servicing Criteria practice of prudent mortgage lenders and Accepted Servicing Practices loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any related Sub-Servicer or any Affiliate of the Servicer or any related Sub-Servicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or any Affiliate of the Servicer;
(iii) the Servicer’s, ’s obligation to make P&I Advances or Servicing Advances; or
(iv) the Servicer’s or any related Sub-Servicer’s right to receive compensation for its services hereunder or with respect to any particular transactiontransaction (all of the foregoing, the “Servicing Standard”). To the extent consistent with the foregoing, foregoing the Servicer shall also seek to maximize the timely and complete recovery of principal and interest on the Mortgage NotesNotes related to the Mortgage Loans. Subject only to the above-described servicing standards and the terms of this Agreement and of the respective Mortgage LoansServicing Standard, the Servicer shall have full power and authority, acting alone or through a Sub-Servicer or Sub-Servicers, as the case may be, Servicers as provided in Section 3.026.06, 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 of the foregoing, the Servicer in its own name, on behalf of the Trustee, or in the name of the Trust a Sub-Servicer is hereby authorized and empowered by the Trustee when to and shall, to the Servicer believes it appropriate in its best judgment extent provided for under this Agreement and in accordance with the servicing standards set forth aboveServicing Standard, to (i) execute and deliver, on behalf of the Certificateholders and the Trust FundTrustee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, or of forbearance, or of modification and all other comparable instruments, with respect to the Mortgage Loans and the Mortgaged Properties and to Properties, (ii) institute foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert the ownership of such properties, and to hold or cause to be held title to such properties, in the name of the Trust Fund, on behalf of the Trust Fund Trustee and Certificateholders and to the Certificateholders, (iii) market, sell and transfer title of REO Properties held in the name of the Trust Fund to third-third party purchasers upon terms and conditions deemed reasonable by the Servicer that are in deems reasonable under the best interests of the Certificateholders and in accordance with Accepted Servicing PracticesStandard, to (iv) bring or respond to civil actions or complaints (in its own name or that of the TrustTrust Fund or the Trustee on behalf of the Trust Fund) related to any Mortgage Loan, Mortgaged Property or REO Property held by the Trust Fund and to (v) execute any other document necessary or appropriate to enable the Servicer to carry out its dutiesservicing and administrative duties hereunder consistent with the Servicing Standard. Subject to Section 6.03, At the Servicer shall represent and protect the interests written request of the Trust Fund in the same manner as it protects its own interests in mortgage loans in its own portfolio with respect to any claim, proceeding or litigation regarding the Mortgage Loans. The Servicer shall service and administer the Mortgage Loans in accordance with applicable law and shall provide to the Mortgagors any reports required to be provided to them thereby. The Servicer shall also comply in the performance of this Agreement with all reasonable rules and requirements of each insurer under any standard hazard insurance policy. Within fifteen (15) days of the Closing Date, but subject to Section 3.17Servicer, the Trustee shall execute and furnish to the Servicer and any Sub-Servicer such documents as are necessary or appropriate and provided to the Trustee to enable the Servicer or any Sub-Servicer to carry out their its servicing and administrative duties hereunderhereunder (including a power of attorney in the form of Exhibit I hereto). By execution of this Agreement, and the Trustee Trustee, on behalf of the Trust Fund, hereby grants to the Servicer and each Sub-Servicer a special or limited power of attorney to carry out such duties including a power of attorney for each county in which a related Mortgaged Property is located the form of Exhibit I hereto, to enable execute any and all documents necessary to carry out any and all servicing duties described in this Agreement (including the Servicer taking of and transferring title of REO Properties to take title and dispose third parties held in the name of the related Mortgaged Properties after foreclosure on behalf Trustee for the benefit of the Trust Fund Trust) and expressly confirms that this paragraph along with the Certificateholders. The Trustee face page and a copy of the signature page (duly executed) to this Agreement shall execute a separate constitute the power of attorney in favor of the Servicer to the extent furnished to the Trustee by the Servicer for evidentiary and/or each Sub-Servicer for the purposes described herein to the extent necessary or desirable to enable the Servicer to perform its duties hereunderrecording purposes. The Trustee shall not under any circumstance be liable for the actions of the Servicer or any Sub-Servicer Servicers under such power powers of attorney. Subject to Section 3.09 hereof, in accordance Consistent with the standards terms of this Agreement and with respect to any Mortgage Loan that is Delinquent or in default, the preceding paragraphServicer may waive, and provided that modify or vary any term of any Mortgage Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if such waiver, modification, postponement or indulgence is in conformity with the Servicing Standard; provided, however, that:
(A) the Servicer shall not be required to make any nonrecoverable Servicing Advance, the 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 Servicing Advances 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 Servicer or by a Sub-Servicer 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. Notwithstanding anything in this Agreement to the contrary, the Servicer may not make any future advances with respect to a related Mortgage Loan (except as provided in Section 4.03);
(B) nor shall the Servicer (i) except as provided in Section 3.07, when the related Mortgagor is in default with respect to such Mortgage Loan or such default is, in the judgment of the Servicer, reasonably foreseeable, shall not permit any modification with respect to any related Mortgage Loan that would change the related Mortgage Rate, defer or forgive the payment of any principal or interest payments, reduce or increase the principal balance outstanding Stated Principal Balance (except for reductions resulting from actual payments of principal) or change extend the final maturity date on such Mortgage Loan (unless as provided in Section 3.02, (i) the Mortgagor is Delinquent or (ii) the Mortgagor is in default or a default is reasonably foreseeable with respect to the Mortgage Loan); and
(C) the Servicer shall not permit any modificationwaiver, waiver postponement or amendment indulgence or consent to (i) partial releases of Mortgages, (ii) alterations, (iii) removal, demolition or division of properties subject to Mortgages, (iv) modification or (v) second mortgage subordination agreements with respect to any term of any related Mortgage Loan that would in any case would: (i) affect adversely the status of any Trust REMIC as a REMIC, (ii) cause any Trust REMIC to be subject to a tax on “prohibited transactions” or “contributions” pursuant to the REMIC Provisions, or (iii) both (Ax) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed Treasury regulations promulgated thereunder) and (By) cause any Trust REMIC constituting part of the Trust Fund to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions contributions” after the startup date” Startup Day under the REMIC Provisions. The Servicer.
(D) for Principal Prepayments in full, in its sole discretion, may charge off such Mortgage Loan if it has made a Final Recovery Determination in good faith with respect thereto (each such Mortgage Loan, a “Charged-off Mortgage Loan”). Any such Charged-off Mortgage Loan shall be treated as a liquidated Mortgage Loan. The Servicer shall have no obligation to make any P&I Advances or Servicing Advances with respect to any Charged-off Mortgage Loan and the Servicer shall not be entitled waive any Prepayment Charge or part of a Prepayment Charge unless, (i) the enforceability thereof shall have been limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally, (ii) the Servicing Fee with respect collectability thereof shall have been limited due to such Charged-off Mortgage Loan for the period following the date on which such Mortgage Loan was charged off. Any Liquidation Proceeds received acceleration in connection with any recoveries received with respect a foreclosure or other involuntary payment or otherwise limited or prohibited by applicable law, (iii) in the Servicer’s reasonable judgment, as described in this Section 3.01, (x) such waiver relates to such Charged-off a default or a Mortgage Loan shall be deposited in that is Delinquent, (y) such waiver would maximize recovery of total proceeds taking into account the Collection Account pursuant to Section 3.10. In the event that the value of such Prepayment Charge and related Mortgage Loan Documents relating to and (z) doing so is standard and customary in servicing similar Mortgage Loans (including any Mortgage Loan contain provisions requiring the related Mortgagor to submit to binding arbitration any disputes arising waiver of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is related to a default or a Mortgage Loan that is Delinquent), (iv) the collection of such Mortgage LoanPrepayment Charge would be considered “predatory” pursuant to written guidance published or issued by any applicable federal, state or local regulatory authority acting in its official capacity and having jurisdiction over such matters, or (v) the Servicer has requested from the Depositor or the Originator sufficient information to enable it to collect the Prepayment Charge and such information has not been provided. In no event shall be entitled the Servicer waive a Prepayment Charge in connection with a repayment or a refinancing of a Mortgage Loan that is not Delinquent or related to waive any such provisions on behalf of the Trust and to send written notice of such waiver to the related Mortgagor, although the Mortgagor may still require arbitration of such disputes at its option. a default; The Servicer may delegate any of its responsibilities under this Agreement; provided, however, that no such delegation shall release the Servicer from the responsibilities or liabilities arising under this Agreement. All references to Servicer in this Agreement shall be deemed to include any Sub-Servicer duly appointed by the Servicer pursuant to this Agreement. Consistent with the foregoing and this Agreement, the Servicer shall seek to maximize the collection of amounts due, and minimize losses that might be incurred, in connection with any Mortgage Loan. For any Delinquent or defaulted Mortgage Loan, the Servicer (a) shall pursue collection from the related Mortgagor of all amounts due under the terms of such Mortgage Loan, (b) at such time as in the reasonable judgment of the Servicer such collection efforts have been exhausted, the Servicer shall consider other workout activities pursuant to Section 3.02 to maximize collections and minimize losses, and (c) at such time as in the reasonable judgment of the Servicer such workout activities have been exhausted, the Servicer shall seek all other remedies that in its best judgment are available to maximize collections and minimize losses through foreclosure sale in respect of Mortgaged Properties or through any legal action brought to obtain judgment against the related Mortgagor or to obtain a deficiency judgment, or to enforce any other remedies or rights provided by the Mortgage Note or Mortgage or otherwise available at law or in equity.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GE-WMC Asset-Backed Pass Through Certificates, Series 2005-1)
