Common use of Subservicer to Service Clause in Contracts

Subservicer to Service. The Subservicer, as an independent contractor, shall service and administer the Mortgage Loans from and after the Closing Date or the Servicing Transfer Date, as applicable, and shall have full power and authority, acting alone, to do any and all things in connection with such servicing and administration which the Subservicer may deem necessary or desirable, consistent with the terms of this Agreement and with Accepted Servicing Practices. Consistent with the terms of this Agreement, the Subservicer 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 Subservicer’s reasonable and prudent determination such waiver, modification, postponement or indulgence is not materially adverse to the Trust Fund; provided, however, that unless the Subservicer has obtained the prior written consent of the Servicer and the NIMS Insurer, the Subservicer shall not permit any modification with respect to any Mortgage Loan that would change the Mortgage Interest Rate (except for modifications relating to a Relief Act Reduction), defer or forgive the payment of principal or interest, reduce or increase the outstanding principal balance (except for actual payments of principal) or change the final maturity date on such Mortgage Loan. Without limiting the generality of the foregoing, the Subservicer 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, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties; provided, further, that upon the full release or discharge, the Subservicer shall notify the related Custodian of the related Mortgage Loan of such full release or discharge. Upon the reasonable request of the Subservicer, the Trustee shall execute and deliver to the Subservicer with any powers of attorney and other documents, furnished to it by the Subservicer and reasonably satisfactory to the Trustee, necessary or appropriate to enable the Subservicer to carry out its servicing and administrative duties under this Agreement; provided that the Trustee shall not be liable for the actions of the Subservicer under such powers of attorney. Promptly after the execution of any assumption, modification, consolidation or extension of any Mortgage Loan, the Subservicer shall forward to the Servicer copies of any documents evidencing such assumption, modification, consolidation or extension. Notwithstanding anything to the contrary contained in this Agreement, the Subservicer shall not make or permit any modification, waiver or amendment of any term of any Mortgage Loan that would cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC or result in the imposition of any tax under Section 860F(a) or Section 860G(d) of the Code. The Subservicer shall not without the Trustee’s written consent: (i) initiate any action, suit or proceedings solely under the Trustee’s name without indicating the Subservicer’s, representative capacity or (ii) take any action with the intent to cause, and which actually does cause, the Trustee to be registered to do business in any state. The Subservicer shall indemnify the Trustee for any and all costs, liabilities and expenses incurred by the Trustee in connection with the negligent or willful misuse of such powers of attorney by the Subservicer. In servicing and administering the Mortgage Loans, the Subservicer shall employ procedures (including collection procedures) and exercise the same care that it would employ and exercise in servicing and administering similar mortgage loans for its own account, giving due consideration to Accepted Servicing Practices where such practices do not conflict with the requirements of this Agreement.

Subservicer to Service. The Subservicer, as an independent contractor, Subservicer shall service and administer the Mortgage Loans from Receivables on behalf of the Borrower and after the Closing Date or Collateral Agent (for the Servicing Transfer Date, as applicable, benefit of the Secured Parties) and shall have full power and authority, acting alonealone and/or through third party vendors as provided in Section 4.01, to do any and all things that it may deem reasonably necessary or desirable in connection with such servicing and administration which and that do not violate any of the Subservicer may deem necessary or desirable, consistent with the material terms of this Subservicing Agreement and with or the Accepted Servicing Practices. Consistent with the terms of this AgreementSubservicing Agreement and the Accepted Servicing Practices, the Subservicer may waive, modify or vary any term of any Mortgage Loan Receivable or consent to the postponement of strict compliance with any such term or in any manner manner, grant indulgence to any Mortgagor if Obligor under a Receivable if, in the SubservicerServicer’s reasonable and prudent determination determination, such waiver, modification, postponement or indulgence is not materially adverse to the Trust Fund; provided, however, that unless the Subservicer has obtained the prior written consent interests of the Servicer and the NIMS InsurerBorrower, the Collateral Agent or any of the Secured Parties. The Subservicer shall not permit any modification with respect to any Mortgage Loan that would change have 75% settlement authority on the Mortgage Interest Rate (except for modifications relating to a Relief Act Reduction), defer or forgive full balance owed inclusive of interest and costs unless given other settlement authority by the payment of principal or interest, reduce or increase the outstanding principal balance (except for actual payments of principal) or change the final maturity date on such Mortgage LoanServicer in writing. Without limiting the generality of the foregoing, the Subservicer shall continue, and in the name of the Servicer or in the name of the Borrower is hereby authorized and empowered, empowered by the Servicer when the Subservicer believes it appropriate in its best judgment to execute and deliver deliver, on behalf of itself the Borrower, any and the Trustee, all instruments of satisfaction or cancellation, or of partial or full release, release or discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties; provided, further, that upon the full release or discharge, the Subservicer shall notify the related Custodian of the related Mortgage Loan of such full release or discharge. Upon the reasonable request of the Subservicer, the Trustee shall execute and deliver to the Subservicer with any powers of attorney and other documents, furnished to it by the Subservicer and reasonably satisfactory to the Trustee, necessary or appropriate to enable the Subservicer to carry out its servicing and administrative duties under this Agreement; provided that the Trustee shall not be liable for the actions of the Subservicer under such powers of attorney. Promptly after the execution of any assumption, modification, consolidation or extension of any Mortgage Loan, the Subservicer shall forward to the Servicer copies of any documents evidencing such assumption, modification, consolidation or extension. Notwithstanding anything to the contrary contained in this Agreement, the Subservicer shall not make or permit any modification, waiver or amendment of any term of any Mortgage Loan that would cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC or result in the imposition of any tax under Section 860F(a) or Section 860G(d) of the CodeReceivables. The Subservicer shall not without maintain on its electronic system of record, data on the Trustee’s written consent: (i) initiate any actionaccounts containing complete notes and documentation of all payments, suit or proceedings solely under the Trustee’s name without indicating the Subservicer’s, representative capacity or (ii) take any action with the intent to causecredits, and which actually does cause, the Trustee to be registered to do business in any stateother servicing activities. The Subservicer shall indemnify service and administer the Trustee for any Receivables in accordance with applicable law, including the Fair Debt Collection Practices Act of 1968, as amended, and all costscomparable state statutes, liabilities and expenses incurred by the Trustee in connection with the negligent or willful misuse of employing such powers of attorney by the Subservicer. In servicing and administering the Mortgage Loans, the Subservicer shall employ procedures (including collection procedures) and exercise degree of care, in each case as are customarily employed by the same care that it would employ and exercise Subservicer in servicing and administering similar mortgage loans for its own accountcontracts owned or serviced by the Subservicer comparable to the Receivables. The Subservicer shall take all actions that are necessary or desirable to maintain continuous perfection of security interests granted by the Obligors in any collateral securing the Receivables, including, but not limited to, recording, registering, giving due consideration notice, obtaining consents, filing, re-recording, re-registering and refiling security agreements, financing statements, continuation statements, notices, recordings or communications with court or other instruments as are necessary to maintain the security interest granted by the Obligors under the respective Receivables. The Subservicer shall comply at all times in all material respects with the Accepted Servicing Practices where and shall not take any action to impair the Collateral Agent’s security interest in any Receivable or related collateral, if any, except to the extent allowed under this Subservicing Agreement, consistent with Accepted Servicing Practices or required by law. The Subservicer may perform any of its duties pursuant to this Subservicing Agreement, including those delegated to it pursuant to this Subservicing Agreement, through third party vendors appointed by the Subservicer; provided, that, in each such practices do not conflict delegation (i) the Servicer shall have the right to look solely to the Subservicer for performance, and (iii) the terms of each third party vendor agreement shall provide that, except with respect to Exempted Receivables, such agreement and the rights and obligations of the related vendor thereunder shall automatically, and without any further action by any other Person, terminate upon the termination of the Subservicer hereunder and that the Subservicer shall provide appropriate notice to each such vendor). Notwithstanding any such delegation of a duty, the Subservicer shall remain obligated and liable for the performance of such duty as if the Subservicer were performing such duty. The Subservicer may take such actions as are necessary to discharge its duties as the Subservicer in accordance with this Subservicing Agreement, including the power to execute and deliver on behalf of the Borrower such instruments and documents as may be customary, necessary or desirable in connection with the requirements performance of the Subservicer’s duties under this AgreementSubservicing Agreement (including consents, waivers and discharges relating to the Receivables and related collateral, if any, and such instruments or documents as may be necessary to effect liquidation of any Receivable or related collateral, if any). In furtherance thereof, the Servicer hereby irrevocably appoints the Subservicer as its attorney-in-fact to execute on its behalf such documents or instruments as are necessary to effect the liquidation of any Receivable or related collateral, if any.