Servicing Rights Owner to Pay Trustee’s Fees and Expenses; Indemnification. (a) The Servicing Rights Owner covenants and agrees to pay to the Trustee and any co-trustee of the Trustee from time to time, and the Trustee and any such co-trustee shall be entitled to, reasonable compensation, including all indemnification payments (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by each of them in the execution of the trusts created hereunder and in the exercise and performance of any of the powers and duties and the Servicing Rights Owner will pay or reimburse the Trustee and any co-trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustee or any co-trustee of the Trustee in accordance with any of the provisions of this Agreement except any such expense, disbursement or advance as may arise from its negligence or bad faith. (b) The Servicing Rights Owner agrees to indemnify the Trustee for, and to defend and hold, the Trustee harmless against, any claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred without gross negligence or willful misconduct on the part of the Trustee as such and/or in its individual capacity, arising out of, or in connection with, the performance of the Trustee’s duties under this Agreement or the other Basic Documents, including the reasonable costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties hereunder, provided that: (i) with respect to any such claim, the Trustee shall have given the Servicing Rights Owner written notice thereof promptly after the Trustee shall have actual knowledge thereof, provided that failure to promptly notify shall not relieve the Servicing Rights Owner of its liability to indemnify hereunder except to the extent it has been materially prejudiced thereby; (ii) while maintaining control over its own defense, the Trustee shall cooperate and consult fully with the Servicing Rights Owner in preparing such defense; and (iii) notwithstanding anything in this Agreement to the contrary, the Servicing Rights Owner shall not be liable for settlement of any claim by the Trustee entered into without the prior consent of the Servicing Rights Owner, which consent shall not be unreasonably withheld. No termination of this Agreement and resignation and removal of the Trustee shall affect the obligations created by this Section 6.06 of the Servicing Rights Owner to indemnify the Trustee under the conditions and to the extent set forth herein. This section shall survive the termination of this Agreement and resignation and removal of the Trustee. Any amounts to be paid by the Servicing Rights Owner pursuant to this Subsection may not be paid from the Trust Fund except as provided in Section 6.03. Notwithstanding the foregoing, the indemnification provided by the Servicing Rights Owner in this Section 6.06 shall not pertain to any loss, liability or expense of the Trustee including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Trustee at the direction of the Certificateholders, as the case may be, pursuant to the terms of this Agreement. (c) The Servicer agrees to indemnify the Trust Fund in an amount equal to the amount of any claim made under a MI Policy for which coverage is denied by the MI Insurer because (and if the MI Insurer’s denial of coverage is contested by the Servicing Rights Owner or the Servicer, a court or arbitrator finally determines that coverage is not available under the MI Policy because) of the Servicer’s failure to abide by the terms of the MI Policy or the MI Insurance Agreement or the Servicer’s failure to abide by the NFI Underwriting Guidelines or the NFI Servicing Guidelines, as attached to the MI Insurance Agreement. (d) In the event the Trustee becomes the Servicer pursuant to Section 7.02 hereof, the Trustee shall not be obligated, in its individual capacity, to pay any obligation of the Servicer under clause (c) above or clause (e) below. (e) To the extent any amounts set forth in clause (a) or (b) above are not paid by the Servicing Rights Owner for any reason, such amounts shall be paid by the Servicer, except that, if the successor servicer is the Trustee, then any such amounts shall be paid by NovaStar Mortgage, Inc.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Trust, Series 2007-1), Pooling and Servicing Agreement (NovaStar Certificates Financing CORP), Pooling and Servicing Agreement (NovaStar Certificates Financing CORP)
Servicing Rights Owner to Pay Trustee’s Fees and Expenses; Indemnification. (a) The Servicing Rights Owner covenants and agrees to pay to the Trustee and any co-trustee of the Trustee from time to time, and the Trustee and any such co-trustee shall be entitled to, reasonable compensation, including all indemnification payments (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by each of them in the execution of the trusts created hereunder and in the exercise and performance of any of the powers and duties and the Servicing Rights Owner will pay or reimburse the Trustee and any co-trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustee or any co-trustee of the Trustee in accordance with any of the provisions of this Agreement except any such expense, disbursement or advance as may arise from its negligence or bad faith.
(b) The Servicing Rights Owner agrees to indemnify the Trustee for, and to defend and hold, the Trustee harmless against, any claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred without gross negligence or willful misconduct on the part of the Trustee as such and/or in its individual capacity, arising out of, or in connection with, the performance of the Trustee’s duties under this Agreement or the other Basic Documents, including the reasonable costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have given the Servicing Rights Owner written notice thereof promptly after the Trustee shall have actual knowledge thereof, provided that failure to promptly notify shall not relieve the Servicing Rights Owner of its liability to indemnify hereunder except to the extent it has been materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee shall cooperate and consult fully with the Servicing Rights Owner in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicing Rights Owner shall not be liable for settlement of any claim by the Trustee entered into without the prior consent of the Servicing Rights Owner, which consent shall not be unreasonably withheld. No termination of this Agreement and resignation and removal of the Trustee shall affect the obligations created by this Section 6.06 of the Servicing Rights Owner to indemnify the Trustee under the conditions and to the extent set forth herein. This section shall survive the termination of this Agreement and resignation and removal of the Trustee. Any amounts to be paid by the Servicing Rights Owner pursuant to this Subsection may not be paid from the Trust Fund except as provided in Section 6.03. Notwithstanding the foregoing, the indemnification provided by the Servicing Rights Owner in this Section 6.06 shall not pertain to any loss, liability or expense of the Trustee including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Trustee at the direction of the Certificateholders, as the case may be, pursuant to the terms of this Agreement.
(c) The Servicer agrees to indemnify the Trust Fund in an amount equal to the amount of any claim made under a MI Policy for which coverage is denied by the MI Insurer because (and if the MI Insurer’s denial of coverage is contested by the Servicing Rights Owner or the Servicer, a court or arbitrator finally determines that coverage is not available under the MI Policy because) of the Servicer’s failure to abide by the terms of the MI Policy or the MI Insurance Agreement or the Servicer’s failure to abide by the NFI Underwriting Guidelines or the NFI Servicing Guidelines, as attached to the MI Insurance Agreement.
(d) In the event the Trustee becomes the Servicer pursuant to Section 7.02 hereof, the Trustee shall not be obligated, in its individual capacity, to pay any obligation of the Servicer under clause (c) above or clause (e) below.
(e) To the extent any amounts set forth in clause (a) or (b) above are not paid by the Servicing Rights Owner for any reason, such amounts shall be paid by the Servicer, except that, if the successor servicer is the Backup Servicer or the Trustee, then any such amounts shall be paid by NovaStar Mortgage, Inc., and if not paid by NovaStar Mortgage, Inc., then by the Issuing Entity.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (NovaStar Certificates Financing CORP), Pooling and Servicing Agreement (Novastar Mortgage Funding Trust, Series 2007-1)
Servicing Rights Owner to Pay Trustee’s Fees and Expenses; Indemnification. (a) The Servicing Rights Owner covenants and agrees to pay to the Trustee and any co-trustee of the Trustee from time to time, and the Trustee and any such co-trustee shall be entitled to, reasonable compensation, including all indemnification payments (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by each of them in the execution of the trusts created hereunder and in the exercise and performance of any of the powers and duties and the Servicing Rights Owner will pay or reimburse the Trustee and any co-trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Trustee or any co-trustee of the Trustee in accordance with any of the provisions of this Agreement except any such expense, disbursement or advance as may arise from its negligence or bad faith.
(b) The Servicing Rights Owner agrees to indemnify the Trustee for, and to defend and hold, the Trustee harmless against, any claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred without gross negligence or willful misconduct on the part of the Trustee as such and/or in its individual capacity, arising out of, or in connection with, the performance of the Trustee’s duties under this Agreement or the other Basic Documents, including the reasonable costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall have given the Servicing Rights Owner written notice thereof promptly after the Trustee shall have actual knowledge thereof, provided that failure to promptly notify shall not relieve the Servicing Rights Owner of its liability to indemnify hereunder except to the extent it has been materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee shall cooperate and consult fully with the Servicing Rights Owner in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicing Rights Owner shall not be liable for settlement of any claim by the Trustee entered into without the prior consent of the Servicing Rights Owner, which consent shall not be unreasonably withheld. No termination of this Agreement and resignation and removal of the Trustee shall affect the obligations created by this Section 6.06 of the Servicing Rights Owner to indemnify the Trustee under the conditions and to the extent set forth herein. This section shall survive the termination of this Agreement and resignation and removal of the Trustee. Any amounts to be paid by the Servicing Rights Owner pursuant to this Subsection may not be paid from the Trust Fund except as provided in Section 6.03. Notwithstanding the foregoing, the indemnification provided by the Servicing Rights Owner in this Section 6.06 shall not pertain to any loss, liability or expense of the Trustee including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Trustee at the direction of the Certificateholders, as the case may be, pursuant to the terms of this Agreement.
(c) The Servicer agrees to indemnify the Trust Fund in an amount equal to the amount of any claim made under a MI Policy for which coverage is denied by the MI Insurer because (and if the MI Insurer’s denial of coverage is contested by the Servicing Rights Owner or the Servicer, a court or arbitrator finally determines that coverage is not available under the MI Policy because) of the Servicer’s failure to abide by the terms of the MI Policy or the MI Insurance Agreement or the Servicer’s failure to abide by the NFI Underwriting Guidelines or the NFI Servicing Guidelines, as attached to the MI Insurance Agreement.
(d) In the event the Trustee becomes the Servicer pursuant to Section 7.02 hereof, the Trustee shall not be obligated, in its individual capacity, to pay any obligation of the Servicer under clause (c) above or clause (e) belowabove.
(e) To the extent any amounts set forth in clause (a) or (b) above are not paid by the Servicing Rights Owner for any reasonOwner, such amounts shall be paid by the Servicer, except that, if the successor servicer is the Trustee, then any such amounts shall be paid by NovaStar Mortgage, Inc..
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (NovaStar Certificates Financing CORP), Pooling and Servicing Agreement (NovaStar Certificates Financing CORP)
Servicing Rights Owner to Pay Trustee’s Fees and Expenses; Indemnification. (a) The Servicing Rights Owner covenants and agrees to indemnify and pay to the Indenture Trustee and any co-trustee of the Indenture Trustee from time to time, and the Indenture Trustee and any such co-trustee shall be entitled to, reasonable compensation, including all indemnification payments (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by each of them in the execution of the trusts created hereunder and in the exercise and performance of any of the powers and duties and the Servicing Rights Owner will pay or reimburse the Indenture Trustee and any co-trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or any co-trustee of the Indenture Trustee in accordance with any of the provisions of this Agreement except any such expense, disbursement or advance as may arise from its negligence or bad faith.
(b) The Servicing Rights Owner agrees to indemnify the Indenture Trustee for, and to defend and hold, the Indenture Trustee harmless against, any claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred without gross negligence or willful misconduct on the part of the Indenture Trustee as such and/or in its individual capacity, arising out of, or in connection with, the performance of the Indenture Trustee’s duties under this Agreement or the other Basic Documents, including the reasonable costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties hereunder, provided that:
(i) with respect to any such claim, the Indenture Trustee shall have given the Servicing Rights Owner written notice thereof promptly after the Indenture Trustee shall have actual knowledge thereof, provided that failure to promptly notify shall not relieve the Servicing Rights Owner of its liability to indemnify hereunder except to the extent it has been materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Indenture Trustee shall cooperate and consult fully with the Servicing Rights Owner in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicing Rights Owner shall not be liable for settlement of any claim by the Indenture Trustee entered into without the prior consent of the Servicing Rights Owner, which consent shall not be unreasonably withheld. No termination of this Agreement and resignation and removal of the Indenture Trustee shall affect the obligations created by this Section 6.06 7.06 of the Servicing Rights Owner to indemnify the Indenture Trustee under the conditions and to the extent set forth herein. This section shall survive the termination of this Agreement and resignation and removal of the Indenture Trustee. Any amounts to be paid by the Servicing Rights Owner pursuant to this Subsection may not be paid from the Trust Fund Issuing Entity except as provided in Section 6.03Article V and Article VIII of the Indenture, but only to the extent unpaid by the Servicing Rights Owner. Notwithstanding the foregoing, the indemnification provided by the Servicing Rights Owner in this Section 6.06 7.06 shall not pertain to any loss, liability or expense of the Indenture Trustee including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture Trustee at the direction of the CertificateholdersNoteholders, as the case may be, pursuant to the terms of this Agreement.
(c) The Servicer agrees to indemnify the Trust Fund Issuing Entity in an amount equal to the amount of any claim made under a MI Policy for which coverage is denied by the MI Insurer because (and if the MI Insurer’s denial of coverage is contested by the Servicing Rights Owner or the Servicer, a court or arbitrator finally determines that coverage is not available under the MI Policy because) of the Servicer’s failure to abide by the terms of the MI Policy or the MI Insurance Agreement or the Servicer’s failure to abide by the NFI Underwriting Guidelines or the NFI Servicing Guidelines, as attached to the MI Insurance Agreement.
(d) In the event the Indenture Trustee becomes the Servicer pursuant to Section 7.02 8.02 hereof, the Trustee shall not be obligated, in its individual capacity, to pay any obligation of the Servicer under clause (c) above or clause (e) belowabove.
(e) To the extent any amounts set forth in clause (a) or (b) above are not paid by the Servicing Rights Owner for any reasonOwner, such amounts shall be paid by the Servicer, except that, if the successor servicer is the Trustee, then any such amounts shall be paid by NovaStar Mortgage, Inc..
Appears in 1 contract
Samples: Sale and Servicing Agreement (NovaStar Certificates Financing CORP)
Servicing Rights Owner to Pay Trustee’s Fees and Expenses; Indemnification. (a) The Servicing Rights Owner covenants and agrees to indemnify and pay to the Indenture Trustee and any co-trustee of the Indenture Trustee from time to time, and the Indenture Trustee and any such co-trustee shall be entitled to, reasonable compensation, including all indemnification payments (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by each of them in the execution of the trusts created hereunder and in the exercise and performance of any of the powers and duties and the Servicing Rights Owner will pay or reimburse the Indenture Trustee and any co-trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or any co-trustee of the Indenture Trustee in accordance with any of the provisions of this Agreement except any such expense, disbursement or advance as may arise from its negligence or bad faith.
(b) The Servicing Rights Owner agrees to indemnify the Indenture Trustee for, and to defend and hold, the Indenture Trustee harmless against, any claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred without gross negligence or willful misconduct on the part of the Indenture Trustee as such and/or in its individual capacity, arising out of, or in connection with, the performance of the Indenture Trustee’s duties under this Agreement or the other Basic Documents, including the reasonable costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties hereunder, provided that:
(i) with respect to any such claim, the Indenture Trustee shall have given the Servicing Rights Owner written notice thereof promptly after the Indenture Trustee shall have actual knowledge thereof, provided that failure to promptly notify shall not relieve the Servicing Rights Owner of its liability to indemnify hereunder except to the extent it has been materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Indenture Trustee shall cooperate and consult fully with the Servicing Rights Owner in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicing Rights Owner shall not be liable for settlement of any claim by the Indenture Trustee entered into without the prior consent of the Servicing Rights Owner, which consent shall not be unreasonably withheld. No termination of this Agreement and resignation and removal of the Indenture Trustee shall affect the obligations created by this Section 6.06 7.06 of the Servicing Rights Owner to indemnify the Indenture Trustee under the conditions and to the extent set forth herein. This section shall survive the termination of this Agreement and resignation and removal of the Indenture Trustee. Any amounts to be paid by the Servicing Rights Owner pursuant to this Subsection may not be paid from the Trust Fund Issuing Entity except as provided in Section 6.03Article V and Article VIII of the Indenture, but only to the extent unpaid by the Servicing Rights Owner. Notwithstanding the foregoing, the indemnification provided by the Servicing Rights Owner in this Section 6.06 7.06 shall not pertain to any loss, liability or expense of the Indenture Trustee including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture Trustee at the direction of the CertificateholdersNoteholders, as the case may be, pursuant to the terms of this Agreement.
(c) The Servicer agrees to indemnify the Trust Fund Issuing Entity in an amount equal to the amount of any claim made under a MI Policy for which coverage is denied by the MI Insurer because (and if the MI Insurer’s denial of coverage is contested by the Servicing Rights Owner or the Servicer, a court or arbitrator finally determines that coverage is not available under the MI Policy because) of the Servicer’s failure to abide by the terms of the MI Policy or the MI Insurance Agreement or the Servicer’s failure to abide by the NFI Underwriting Guidelines or the NFI Servicing Guidelines, as attached to the MI Insurance Agreement.
(d) In the event the Indenture Trustee becomes the Servicer pursuant to Section 7.02 8.02 hereof, the Trustee shall not be obligated, in its individual capacity, to pay any obligation of the Servicer under clause (c) above or clause (e) belowabove.
(e) To the extent any amounts set forth in clause (a) or (b) above are not paid by the Servicing Rights Owner for any reason, such amounts shall be paid by the Servicer, except that, if the successor servicer is the Trustee, then any such amounts shall be paid by NovaStar Mortgage, Inc.
Appears in 1 contract
Samples: Sale and Servicing Agreement (NovaStar Certificates Financing CORP)