The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-7), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-7), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-8)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-5), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-3), Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar10)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, the Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual ~~Interest~~ Interest, the Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar14), Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar16), Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar18)

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Issuer, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer's possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the "Collection Policy") and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances~~it may deem necessary or desirable, ~~including~~it being understood, ~~without limitation~~however, that the Servicer shall at all times remain responsible to the Issuer, the ~~power~~ Paying Agent, the Indenture Trustee and, as a third-party beneficiary hereunder, the Enhancer for the performance of its duties and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Issuer and the Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute ~~and furnish to the Servicer, at the Servicer’s direction,~~ any powers of attorney and other documents ~~prepared~~ furnished to them by the Servicer and ~~determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own ~~discretion and on behalf of the Trust~~discretion, obtain credit information in the form of a “"credit score” " from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders', the Enhancer's and the Trust's reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer, the Paying Agent and the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee, the Paying Agent and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer's rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Paying Agent, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 3 contracts

Samples: Servicing Agreement (Wachovia Asset Sec Series 2004 - HE1), Servicing Agreement (Wachovia Mortgage Loan Trust, LLC), Servicing Agreement (Wachovia Asset Funding Trust, LLC)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. In addition, with respect to the Countrywide Loans, the Servicer shall, on behalf of the Trust, take such actions as are required or permitted to be taken by the Trust as assignee of the rights of the Company (as assignee of the rights of Washington Mutual Mortgage Securities Corp.) under the Countrywide Agreement with respect to the servicing of the Countrywide Loans (including, without limitation, making requests or demands or giving consents to Countrywide, and receiving notices from Countrywide), in the same manner in which, and with the same care, skill, prudence and diligence with which, it exercises such rights and performs such obligations under similar agreements, and shall have full power and authority to do or cause to be done any and all things in connection therewith which a prudent person would do under similar circumstances. In addition, with respect to the Countrywide Loans, the Servicer shall perform its obligations under the fifth paragraph of this Section 3.01 and the fourth paragraph of Section 3.09. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB Loans and held in portfolios of responsible mortgage lenders in the local areas where each related Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related ~~Mortgage~~ WMB Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected thereby and that REMIC I, XXXXX XX and REMIC III would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would both constitute a sale or exchange of such Countrywide Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Countrywide Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would release the lien of the related Mortgaged Property, grant an easement thereon in favor of another Person, or involve any alteration or demolition of the related Mortgaged Property or other similar matters unless it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Countrywide Loan, that the security for, and the timely and full collectability of, such Countrywide Loan would not be adversely affected thereby and that REMIC I, REMIC II and ~~XXXXX XXX~~ REMIC III would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB Loans and with respect to the related Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties related to the WMB Loans and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-Oa1), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-Oa2), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-Ar9)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved.] (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action) after any release does not exceed the ~~timely and full collectability of,~~ LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of the ~~Servicer such default is imminent)~~ related Group of more than 5.0% of the Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved.] (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Seller, the Sponsor, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 3 contracts

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-1), Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2004-4), Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-2)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-10), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-9)

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Issuer, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer's possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the "Collection Policy") and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances~~it may deem necessary or desirable, ~~including~~it being understood, ~~without limitation~~however, that the Servicer shall at all times remain responsible to the Issuer, the ~~power~~ Paying Agent and ~~authority to bring actions~~ the Indenture Trustee for the performance of its duties and ~~defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Issuer and the Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute ~~and furnish to the Servicer, at the Servicer’s direction,~~ any powers of attorney and other documents ~~prepared~~ furnished to them by the Servicer and ~~determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own ~~discretion and on behalf of the Trust~~discretion, obtain credit information in the form of a “"credit score” " from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders' and the Trust's reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer, the Paying Agent and the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee, the Paying Agent and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer's rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Paying Agent, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 2 contracts

Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2003-He2 Trust), Servicing Agreement (Wachovia Asset Securitization Inc)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. In addition, with respect to the Countrywide Loans, the Servicer shall, on behalf of the Trust, take such actions as are required or permitted to be taken by the Trust as assignee of the rights of the Company (as assignee of the rights of Washington Mutual Mortgage Securities Corp.) under the Countrywide Agreement with respect to the servicing of the Countrywide Loans (including, without limitation, making requests or demands or giving consents to Countrywide, and receiving notices from Countrywide), in the same manner in which, and with the same care, skill, prudence and diligence with which, it exercises such rights and performs such obligations under similar agreements, and shall have full power and authority to do or cause to be done any and all things in connection therewith which a prudent person would do under similar circumstances. In addition, with respect to the Countrywide Loans, the Servicer shall perform its obligations under the fifth paragraph of this Section 3.01 and the fourth paragraph of Section 3.09. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB Loans and held in portfolios of responsible mortgage lenders in the local areas where each related Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related ~~Mortgage~~ WMB Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected thereby and that REMIC I, XXXXX XX and REMIC III would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would both constitute a sale or exchange of such Countrywide Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Countrywide Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would release the lien of the related Mortgaged Property, grant an easement thereon in favor of another Person, or involve any alteration or demolition of the related Mortgaged Property or other similar matters unless it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Countrywide Loan, that the security for, and the timely and full collectability of, such Countrywide Loan would not be adversely affected thereby and that REMIC I, REMIC II and ~~XXXXX XXX~~ REMIC III would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, the Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB Loans and with respect to the related Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual ~~Interest~~ Interest, the Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties related to the WMB Loans and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-Ar8), Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-Ar5)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved]. (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action in a manner reasonably acceptable to the ~~timely and full collectability of,~~ Note Insurer) after any release does not exceed the LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not, without the consent of the Note Insurer, agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of more than [__]% of the ~~Servicer such default is imminent)~~ Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved]. (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee and the Note Insurer of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Issuing Entity or (ii) assert jurisdiction over the Issuing Entity. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Depositor, the Sponsor, the Indenture Trustee, the Owner Trustee, the Note Insurer, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of~~ Noteholders, the ~~REMIC I Regular Interests~~ Note Insurer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~on the MERS System, to execute and deliver, on behalf of the Indenture Trustee, the Note Insurer 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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust), Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved.] (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action) after any release does not exceed the ~~timely and full collectability of,~~ LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of the ~~Servicer such default is imminent)~~ related Group of more than % of the Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved.] (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Issuing Entity or (ii) assert jurisdiction over the Issuing Entity. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Depositor, the Sponsor, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust), Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)

The Servicer. ~~Washington Mutual Bank~~ [____] shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “"due-on-sale” " clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC ~~I, REMIC II and XXXXX XXX~~ I would not fail to continue to qualify as ~~REMICs~~ a REMIC under the Code as a result thereof and that no tax on “"prohibited transactions” " or “"contributions” " after the startup day would be imposed on ~~any~~ REMIC I as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the ~~MERS®~~ MERS(R) System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the ~~MERS®~~ MERS(R) System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s 's direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or ~~Freddie~~ Xxxxxxx Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “"credit score” " from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Asset Acceptance Corp.)

The Servicer. Washington Mutual ~~Bank~~ Bank, FA shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Subject to the third sentence of this paragraph, the Servicer shall have the right, but not the obligation, to purchase any Mortgage Loan delinquent 90 consecutive days or more for an amount equal to its Purchase Price; provided, however, that the aggregate Purchase Price of Mortgage Loans so purchased pursuant to this sentence shall not exceed one-half of one percent (0.50%) of the aggregate Principal Balance, as of the Cut-Off Date, of all Mortgage Loans. Notwithstanding the immediately preceding sentence, the Servicer’s right to purchase any Mortgage Loan shall be subject to the following additional conditions: (x) if the date on which the Mortgage Loan first became 90-days delinquent (the “Initial Delinquency Date”) occurred during the first two calendar months of a calendar quarter, the Servicer may exercise the purchase right during the period commencing on the Initial Delinquency Date and ending on the last Servicer Business Day of such calendar quarter, (y) if the Initial Delinquency Date occurred during the third calendar month of a calendar quarter, the Servicer may exercise the purchase right during the period commencing on the first day of the immediately succeeding calendar quarter and ending on the last Servicer Business Day of such succeeding calendar quarter and (z) if the Servicer does not exercise the purchase right with respect to a Mortgage Loan during the period specified in clause (x) or (y), as applicable, such Mortgage Loan shall thereafter again become eligible for purchase pursuant to the preceding sentence only after the Mortgage Loan ceases to be 90-day delinquent and thereafter becomes 90-day delinquent again. For purposes of this paragraph, a Mortgage Loan is considered delinquent for 90 consecutive days if a Monthly Payment is not received by the first day of the third month following the month during which such payment was due. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-1)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust ~~to, and shall,~~ to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar8)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust ~~to, and shall,~~ to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar11)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved.] (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action) after any release does not exceed the ~~timely and full collectability of,~~ LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of the ~~Servicer such default is imminent)~~ related Group of more than % of the Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved.] (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Seller for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Trust or (ii) assert jurisdiction over the Trust. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Seller, the Sponsor, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. In addition, with respect to the Countrywide Loans, the Servicer shall, on behalf of the Trust, take such actions as are required or permitted to be taken by the Trust as assignee of the rights of the Company (as assignee of the rights of Washington Mutual Mortgage Securities Corp.) under the Countrywide Agreement with respect to the servicing of the Countrywide Loans (including, without limitation, making requests or demands or giving consents to Countrywide, and receiving notices from Countrywide), in the same manner in which, and with the same care, skill, prudence and diligence with which, it exercises such rights and performs such obligations under similar agreements, and shall have full power and authority to do or cause to be done any and all things in connection therewith which a prudent person would do under similar circumstances. In addition, with respect to the Countrywide Loans, the Servicer shall perform its obligations under the fifth paragraph of this Section 3.01 and the fourth paragraph of Section 3.09. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB Loans and held in portfolios of responsible mortgage lenders in the local areas where each related Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related ~~Mortgage~~ WMB Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would both constitute a sale or exchange of such Countrywide Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Countrywide Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC formed hereunder to fail to qualify as such under the Code. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would release the lien of the related Mortgaged Property, grant an easement thereon in favor of another Person, or involve any alteration or demolition of the related Mortgaged Property or other similar matters unless it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Countrywide Loan, that the security for, and the timely and full collectability of, such Countrywide Loan would not be adversely affected thereby and that any REMIC formed hereunder would not fail to continue to qualify as a REMIC under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB Loans and with respect to the related Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties related to the WMB Loans and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-Oa4)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. In addition, with respect to the Countrywide Loans, the Servicer shall, on behalf of the Trust, take such actions as are required or permitted to be taken by the Trust as assignee of the rights of the Company (as assignee of the rights of Washington Mutual Mortgage Securities Corp.) under the Countrywide Agreement with respect to the servicing of the Countrywide Loans (including, without limitation, making requests or demands or giving consents to Countrywide, and receiving notices from Countrywide), in the same manner in which, and with the same care, skill, prudence and diligence with which, it exercises such rights and performs such obligations under similar agreements, and shall have full power and authority to do or cause to be done any and all things in connection therewith which a prudent person would do under similar circumstances. In addition, with respect to the Countrywide Loans, the Servicer shall perform its obligations under the fifth paragraph of this Section 3.01 and the fourth paragraph of Section 3.09. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB Loans and held in portfolios of responsible mortgage lenders in the local areas where each related Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related ~~Mortgage~~ WMB Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected thereby and that REMIC I, XXXXX XXX and REMIC IV would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would both constitute a sale or exchange of such Countrywide Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Countrywide Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would release the lien of the related Mortgaged Property, grant an easement thereon in favor of another Person, or involve any alteration or demolition of the related Mortgaged Property or other similar matters unless it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Countrywide Loan, that the security for, and the timely and full collectability of, such Countrywide Loan would not be adversely affected thereby and that REMIC I, REMIC II II, REMIC III and ~~XXXXX XXX~~ REMIC IV would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB Loans and with respect to the related Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties related to the WMB Loans and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-Oa3)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. In addition, with respect to the Countrywide Loans, the Servicer shall, on behalf of the Trust, take such actions as are required or permitted to be taken by the Trust as assignee of the rights of the Company (as assignee of the rights of Washington Mutual Mortgage Securities Corp.) under the Countrywide Agreement with respect to the servicing of the Countrywide Loans (including, without limitation, making requests or demands or giving consents to Countrywide, and receiving notices from Countrywide), in the same manner in which, and with the same care, skill, prudence and diligence with which, it exercises such rights and performs such obligations under similar agreements, and shall have full power and authority to do or cause to be done any and all things in connection therewith which a prudent person would do under similar circumstances. In addition, with respect to the Countrywide Loans, the Servicer shall perform its obligations under the fifth paragraph of this Section 3.01 and the fourth paragraph of Section 3.09. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB Loans and held in portfolios of responsible mortgage lenders in the local areas where each related Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related ~~Mortgage~~ WMB Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB Loan would not be adversely affected thereby and that REMIC I, I and REMIC II would not fail to continue to qualify as REMICs under the Code as a result thereof and ~~XXXXX XXX~~ that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would both constitute a sale or exchange of such Countrywide Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Countrywide Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall not consent, pursuant to the second sentence of Section 11.01 of the Countrywide Servicing Addendum, to any modification with respect to any Countrywide Loan that would release the lien of the related Mortgaged Property, grant an easement thereon in favor of another Person, or involve any alteration or demolition of the related Mortgaged Property or other similar matters unless it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Countrywide Loan, that the security for, and the timely and full collectability of, such Countrywide Loan would not be adversely affected thereby and that REMIC I and REMIC II would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB Loans and with respect to the related Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties related to the WMB Loans and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-Ar7)

The Servicer. ~~Washington Mutual Bank~~ [____] shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC ~~I, REMIC II and XXXXX XXX~~ I would not fail to continue to qualify as ~~REMICs~~ a REMIC under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on ~~any~~ REMIC I as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Asset Acceptance Corp.)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, the Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual ~~Interest~~ Interest, the Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar13)

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Trust, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer's possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the "Collection Policy") and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer~~ it may deem necessary or desirable, it being understood, however, that the Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee for the performance of ~~mortgage loans would do under similar circumstances, including, without limitation, the power~~ its duties and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall ~~be borne by~~ furnish the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents ~~prepared by the Servicer and determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the ~~Trust~~Indenture Trustee, obtain credit information in the form of a “"credit score” " from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders’ and the Trust’s reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer’s rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 1 contract

Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2002 He2 Trust)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved.] (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action) after any release does not exceed the ~~timely and full collectability of,~~ LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of the ~~Servicer such default is imminent)~~ related Group of more than 5.0% of the Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved.] (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent, other than routine foreclosure actions: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Issuer or (ii) assert jurisdiction over the Trust. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Depositor, the Sponsor, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-4)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, the Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual ~~Interest~~ Interest, the Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or ~~Freddie~~ Xxxxxxx Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor ~~and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.~~and

Appears in 1 contract

Samples: Pooling and Servicing Agreement

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust ~~to, and shall,~~ to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-Ar1)

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Issuer, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer's possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the “Collection Policy”) and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer~~ it may deem necessary or desirable, it being understood, however, that the Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee for the performance of ~~mortgage loans would do under similar circumstances, including, without limitation, the power~~ its duties and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Issuer and the Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute ~~and furnish to the Servicer, at the Servicer’s direction,~~ any powers of attorney and other documents ~~prepared~~ furnished to them by the Servicer and ~~determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own ~~discretion and on behalf of the Trust~~discretion, obtain credit information in the form of a “credit score” " from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders’ and the Trust’s reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer and the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer’s rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 1 contract

Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2002 He2 Trust)

The Servicer. ~~Washington Mutual Bank~~ (a) The Servicer shall ~~act as Servicer to~~ service and administer the Mortgage Loans ~~on behalf of the Trust~~ in accordance with ~~the terms hereof, consistent~~ this Agreement and in accordance with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfoliosAccepted Servicing Practices, and shall have full power and ~~authority~~ authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power~~ it may deem necessary or desirable. (b) The Servicer shall exercise its discretion consistent with Accepted Servicing Practices and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce~~ the terms of this Agreement, with respect to the enforcement of defaulted Mortgage ~~Notes.~~ Loans in such manner as will maximize the receipt of principal and interest with respect thereto, including but not limited to the sale of such Mortgage Loan to a third party, the modification of such Mortgage Loan, or foreclosure upon the related property with a Mortgage and disposition thereof. (c) The ~~Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any~~ duties of ~~its responsibilities hereunder and~~ the Servicer shall ~~diligently pursue~~ include collecting and posting of all payments, responding to inquiries of Mortgagors or by federal, state or local government authorities with respect to the Mortgage Loans, investigating delinquencies, reporting tax information to Mortgagors in accordance with its ~~rights against such agents or independent contractors~~customary practices and accounting for collections and furnishing monthly and annual statements to the Indenture Trustee with respect to distributions, paying Compensating Interest and making Delinquency Advances and Servicing Advances pursuant hereto. The Servicer shall ~~make reasonable efforts to collect or cause to be collected all payments called for under the terms~~ follow its customary standards, policies and ~~provisions of the Mortgage Loans and shall, to the extent such~~ procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures in performing its duties as ~~are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located~~Servicer. The Servicer shall ~~enforce “due-on-sale” clauses~~ cooperate with ~~respect~~ the Indenture Trustee and furnish to the ~~related Mortgage Loans~~Indenture Trustee with reasonable promptness information in its possession as may be necessary or appropriate to enable the Indenture Trustee to perform its tax reporting duties hereunder. The Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Indenture Trustee shall deem necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, ~~to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing~~however, the Servicer ~~may~~shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (d) [Reserved.] (e) The Servicer shall, in accordance with ~~prudent mortgage loan servicing practices~~Accepted Servicing Practices, have the right to approve requests of Mortgagors for consent to (i) ~~waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment~~ partial releases of ~~any~~ Mortgage ~~Loan~~ Loans and (ii) ~~only upon determining that the coverage~~ alterations, removal, demolition or division of ~~any applicable insurance policy or guaranty related~~ Mortgaged Properties subject to a Mortgage ~~Loan will not~~ Loans. No such request shall be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, approved by the Servicer ~~may waive, modify or vary any term of any Mortgage Loan or consent to~~ unless: (x) the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner provisions of the related Mortgage ~~Loan~~Note have been complied with; (y) the LTV (which may, ~~that~~ for this purpose, be determined at the ~~security for, and~~ time of any such action) after any release does not exceed the ~~timely and full collectability of,~~ LTV set forth for such Mortgage Loan ~~would~~ in the Mortgage Loan Schedule; and (z) the lien priority, monthly payment, Mortgage Interest Rate or maturity date of the related Mortgage is not ~~be adversely~~ affected ~~by such waiver, modification, postponement or indulgence~~except in accordance with Section 5.01(f); provided, however, that the foregoing requirements (x), (y) and (z) shall not apply to any such situation described in this paragraph if such situation results from any condemnation or easement activity by a governmental entity. (f) Notwithstanding anything else contained herein, the Servicer may not agree to a modification or extension of any Mortgage Loan unless ~~the Mortgagor~~ both (i) such Mortgage Loan is in default ~~with respect to the Mortgage Loan~~ or a default thereon is reasonably foreseeable and (ii) such modification or extension would not result in the ~~reasonable judgment~~ Servicer agreeing to modifications or extensions on Mortgage Loans with Initial Pool Balances of the ~~Servicer such default is imminent)~~ related Group of more than 5.0% of the Maximum Collateral Amount. In addition, the Servicer ~~shall~~ may not ~~permit any~~ agree to more than (i) one modification or extension with respect to any individual Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, in a calendar year or (ii) ~~be inconsistent with~~ three modifications or extensions of an individual Mortgage Loan during the ~~terms~~ life of ~~any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding~~ such Mortgage Loan. (g) [Reserved.] (h) Without limiting the generality of the foregoing, but subject to Sections 5.05 and 5.06, the Servicer ~~shall not permit any modification with respect~~ in its own name may be authorized and empowered pursuant to ~~any Mortgage Loan that would both constitute~~ a ~~sale or exchange~~ power of ~~such Mortgage Loan within~~ attorney executed and delivered by the meaning of Section 1001 of the Code (including 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 or in a default situation) Indenture Trustee to execute and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security fordeliver, and ~~the timely and full collectability of, such Mortgage Loan would not~~ may be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the ~~Trust to~~Indenture Trustee, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, (i) any and all instruments of satisfaction or ~~cancellation,~~ cancellation or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and with respect to the Mortgaged Properties, (ii) and to institute foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of any Mortgaged Property on behalf of the Indenture Trustee, and (iii) to hold title to any Mortgaged Property upon such foreclosure or deed in lieu of foreclosure on behalf of the Indenture Trustee; provided, however, that Section 5.07(a) shall constitute a power of attorney from the Indenture Trustee to the Servicer to execute an instrument of satisfaction (or assignment of mortgage without recourse) with respect to any Mortgage Loan paid in full (or with respect to which payment in full has been escrowed). Subject to Sections 5.05 and 5.06, the Indenture Trustee shall furnish the Servicer with any powers of attorney and other documents as the Servicer shall reasonably request to enable the Servicer to carry out its servicing and administrative duties hereunder; provided, however, the Servicer shall prepare for and deliver to the Indenture Trustee for its execution any such powers of attorney; provided, further, that the Indenture Trustee shall not be responsible for any misuse of any such power of attorney. Notwithstanding anything contained herein to the contrary, the Servicer shall not, without the Indenture Trustee’s written consent: (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loan solely under the Indenture Trustee’s name without indicating the Servicer’s representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties) solely under the Indenture Trustee’s name, (iii) engage counsel to represent the Indenture Trustee in any action, suit or proceeding not directly related to the servicing of any Mortgage Loan (including but not limited to actions, suits or proceedings against Noteholders or Certificateholders, or against the Depositor for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any action with the intent to cause, and that actually causes, the Indenture Trustee to be registered to do business in any state. (i) The Servicer shall give prompt notice to the Indenture Trustee of any action, of which the Servicer has actual knowledge, to (i) assert a claim against the Issuer or (ii) assert jurisdiction over the Trust. (j) Servicing Advances incurred by the Servicer in connection with the servicing of the Mortgage Loans (including any penalties in connection with the payment of any taxes and assessments or other charges) on any Mortgaged Property shall be recoverable by the Servicer to the extent described herein. (k) The Servicer shall be entitled to rely, and shall be fully protected in relying, upon any promissory note, writing, resolution, notice, consent, certificate, affidavit, letter, e-mail, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Mortgagor(s)), independent accountants and other experts selected by the Servicer. (l) The Servicer shall have no liability to the Depositor, the Sponsor, the Indenture Trustee, the Owner Trustee, any Noteholder or any other Person for any action taken, or for refraining from the taking of any action, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that the foregoing shall not apply to any breach of representations or warranties made by the Servicer herein, or to any specific liability imposed upon the Servicer pursuant to this Agreement or any liability that would otherwise be imposed upon the Servicer by reason of its willful misconduct, bad faith or negligence in the performance of its duties hereunder or by reason of its failure to perform its obligations or duties hereunder. (m) The Servicer further is ~~hereby further~~ authorized and empowered by the ~~Trust to execute and deliver or cause to be executed and delivered~~ Indenture Trustee, on behalf of the ~~Holders of the REMIC I Regular Interests~~ Noteholders and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them, such instruments of assignment or other comparable instruments as~~ when the Servicer ~~shall,~~ believes it is appropriate in its ~~sole judgment, deem appropriate in order~~ best judgment to register any Mortgage Loan on the ~~MERS® System~~ MERS System, or to cause the removal from the registration of any Mortgage Loan ~~from registration thereon~~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 expenses incurred in connection with the actions described in the preceding sentence shall be ~~borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be~~ reimbursable to the ~~Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the~~ Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryServicing Advances.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-3)

The Servicer. ~~Washington Mutual Bank~~ The Trustee shall ~~act as Servicer to service and administer~~ hold for the ~~Mortgage Loans on behalf~~ benefit of the ~~Trust~~ Certificateholders such of the Eligible Investments as consists of instruments, deposit accounts, negotiable documents, money, goods, letters of credit, and advices of credit in ~~accordance~~ the State of New York. The Trustee shall hold for the benefit of the Certificateholders such of the Eligible Investments as constitutes investment property through a securities intermediary, which securities intermediary shall agree with the ~~terms hereof~~Trustee that (a) such investment property shall at all times be credited to a securities account of the Trustee, ~~consistent~~ (b) such securities intermediary shall treat the Trustee as entitled to exercise the rights that comprise each financial asset credited to such securities account, (c) all property credited to such securities account shall be treated as a financial asset, (d) such securities intermediary shall comply with ~~prudent mortgage loan servicing practices~~ entitlement orders originated by the Trustee without the further consent of any other person or entity, (e) such securities intermediary will not agree with any person or entity other than the Trustee to comply with entitlement orders originated by such other person or entity, (f) such securities accounts and the property credited thereto shall not be subject to any lien, security interest, or right of set-off in favor of such securities intermediary or anyone claiming through it (other than the Trustee), and (~~unless inconsistent with prudent mortgage loan servicing practices~~g) such agreement shall be governed by the laws of the State of New York. Terms used in the ~~same manner~~ preceding sentence that are defined in ~~which,~~ the New York UCC and ~~with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ not otherwise defined herein shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions meaning set forth in the New York UCC. Except as permitted by this Section ~~3.08. Consistent with the foregoing~~4.02, the ~~Servicer may,~~ Trustee shall not hold Eligible Investments through an agent or a nominee. Funds on deposit in ~~accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with~~ the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment Special Funding Account on any ~~Mortgage Note or for~~ Distribution Date will be invested in Eligible Investments that will mature so that all funds will be available at the ~~liquidation~~ close of ~~delinquent items~~business on the Transfer Date following such Monthly Period. ~~Consistent with the terms~~ No Eligible Investment shall be disposed of ~~this Section 3.01, the Servicer may waive, modify or vary any term of any Mortgage Loan or consent~~ prior to ~~the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor if it has determined, exercising~~ its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgencematurity; provided, however, that ~~(unless~~ the ~~Mortgagor is~~ Trustee may sell, liquidate or dispose of an Eligible Investment before its maturity, at the written direction of the Servicer, if such sale, liquidation or disposal would not result in a loss of all or part of the principal portion of such Eligible Investment or if, prior to the maturity of such Eligible Investment, a default occurs in the payment of principal, interest or any other amount with respect to such Eligible Investment. Unless directed by the Servicer, funds deposited in the Special Funding Account on a Transfer Date with respect to the ~~Mortgage Loan or~~ next following Distribution Date are not required to be invested overnight. On each Distribution Date, all interest and other investment earnings (net of losses and investment expenses) on funds on deposit in the ~~reasonable judgment~~ Special Funding Account shall be treated as Collections of ~~the Servicer such default is imminent) the Servicer shall not permit any modification~~ Finance Charge Receivables with respect to the last day of the related Monthly Period except as otherwise specified in the related Supplement. Unless otherwise directed by the Servicer, funds on deposit in the Special Funding Account will be withdrawn and paid to the Holders of the Seller Interest pro rata on any ~~Mortgage Loan~~ Distribution Date to the extent that ~~would (i) change~~ the ~~applicable Mortgage Interest Rate, defer~~ Seller Amount exceeds the Required Seller Amount on such date. On any Transfer Date on which one or ~~forgive the payment of any principal~~ more Series is in an Accumulation Period or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoingAmortization Period, the Servicer shall ~~not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange~~ determine the aggregate amounts of ~~such Mortgage Loan within the meaning of Section 1001 of the Code (including any proposed~~Principal Shortfalls, 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instrumentsany, with respect to each such Series that is a Principal Sharing Series (after giving effect to the ~~Mortgage Loans~~ allocation and payment provisions in the Supplement with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests each such Series), and the ~~Class R-1 Residual Interest and~~ Servicer shall instruct the ~~Trust, or any of them,~~ Trustee to withdraw such ~~instruments of assignment or other comparable instruments as~~ amount (up to the ~~Servicer shall,~~ amount on deposit in ~~its sole judgment, deem appropriate in order to register any Mortgage Loan~~ the Special Funding Account) from the Special Funding Account on the ~~MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred~~ succeeding Distribution Date and allocate such amount among each such Series as specified in ~~connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement~~each related Supplement; provided, however, that funds shall only be withdrawn from the Special Funding Account for allocation to such Principal Shortfalls. For purposes of determining the availability of funds or the balances in the Special Funding Account for any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties reason under this Agreement~~. The Servicer shall obtain (to the extent generally commercially available)~~ , all investment earnings net of investment expenses and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any losses on such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and funds shall be ~~entitled~~ deemed not to ~~reasonable compensation therefor and (ii) may, at its own discretion and~~ be available or on ~~behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository~~deposit.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (National City Credit Card Master Trust)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or ~~Freddie~~ Xxxxxxx Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust ~~to, and shall,~~ to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or ~~Freddie~~ Xxxxxxx Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Trust, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer's possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be at the will of the Trust to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the "Collection Policy") and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer~~ it may deem necessary or desirable, it being understood, however, that the Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee for the performance of ~~mortgage loans would do under similar circumstances, including, without limitation, the power~~ its duties and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall ~~be borne by~~ furnish the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents ~~prepared by the Servicer and determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the ~~Trust~~Indenture Trustee, obtain credit information in the form of a “"credit score” " from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders' and the Trust's reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer's rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 1 contract

Samples: Servicing Agreement (Wachovia Asset Sec Inc Asst Back Notes Ser 2002 He1)

The Servicer. ~~Washington Mutual Bank shall act as~~ (a) The Issuer, by execution and delivery of this Agreement, does hereby appoint the Servicer for, and subject to ~~service and administer~~ the terms of this Agreement, the Servicer assumes responsibility for, the servicing of the Mortgage ~~Loans on behalf~~ Loans. Each original Mortgage File and any Related Documents delivered to the Servicer by the Seller pursuant to the provisions of this Agreement and any Subsequent Transfer Agreement shall be held in trust by the Servicer for the benefit of the Trust in accordance with the terms ~~hereof~~of this Agreement. The Servicer’s possession of any portion of any original Mortgage File, any Related Documents or copies thereof shall be maintained in accordance with the provisions of this Agreement to facilitate the servicing of the related Mortgage Loans pursuant to this Agreement. (b) The Servicer shall service and administer the Mortgage Loans in a manner generally consistent with ~~prudent~~ the terms of this Agreement and the collection policy set forth on Exhibit B (the “Collection Policy”) and in a manner that shall be normal and usual in its mortgage ~~loan~~ servicing ~~practices~~ activities. Subject to the Collection Policy and the terms of this Agreement (~~unless inconsistent with prudent mortgage loan servicing practices) in~~ including without limitation Sections 3.08 and 3.09), the ~~same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and~~ Servicer shall have full power and authority to do ~~or cause to be done~~ any and all things in connection with such servicing and administration which ~~a prudent servicer of mortgage loans would do under similar circumstances~~it may deem necessary or desirable, ~~including~~it being understood, ~~without limitation~~however, that the Servicer shall at all times remain responsible to the Issuer, the ~~power~~ Paying Agent, the Indenture Trustee and, as a third-party beneficiary hereunder, the Enhancer for the performance of its duties and ~~authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes~~obligations hereunder. The Servicer ~~may perform its servicing responsibilities through agents or independent contractors~~will at all times apply the same standards and follow the same procedures with respect to the decision to commence litigation, ~~but shall not thereby be released from any of its responsibilities hereunder~~ and ~~the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts~~ in prosecuting and litigating with respect to ~~collect or cause to be collected all payments called for under the terms and provisions of~~ the Mortgage Loans as it applies and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed follows with respect to mortgage loans ~~comparable to~~ like the Mortgage Loans ~~and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located.~~ generally. (c) The Servicer shall enforce ~~“due-on-sale” clauses with respect to~~ the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan respective rights and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner interests of the ~~related~~ Issuer and the Indenture Trustee in and under each Mortgage Loan, ~~that~~ including the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or and any other ~~similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the~~ related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereofsecurity. The Servicer is hereby authorized and ~~empowered by~~ empowered, in performing its duties hereunder, subject to the ~~Trust to~~limitations set forth herein, ~~and shall,~~ to execute and ~~deliver or cause to be executed and delivered~~ deliver, on behalf of itself, the ~~Holders of~~ Issuer, the ~~REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust~~ Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full ~~release,~~ release or discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable ~~instruments,~~ instruments with respect to the Mortgage Loans and ~~with respect to~~ the Mortgaged Properties. The ~~Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests~~ Issuer and the ~~Class R-1 Residual Interest and the Trust~~Indenture Trustee, ~~or any of them~~as applicable, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute ~~and furnish to the Servicer, at the Servicer’s direction,~~ any powers of attorney and other documents ~~prepared~~ furnished to them by the Servicer and ~~determined by the Servicer to be~~ necessary or appropriate to enable the Servicer to carry out its ~~supervisory,~~ servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when madehereunder. In ~~connection with the servicing and administering of each Mortgage Loan~~addition, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own ~~discretion and on behalf of the Trust~~discretion, obtain credit information in the form of a “credit score” from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a limited power of attorney substantially in the form of Exhibit C hereto. No costs incurred by the Servicer in respect of Servicing Advances shall, for the purposes of distributions to the Noteholders, be added to the amount owing under the related Mortgage Loan. Notwithstanding anything to the contrary contained herein, the Servicer, in servicing and administering the Mortgage Loans, shall employ or cause to be employed procedures (including collection, foreclosure and management procedures with respect to REO Property) and exercise the same care that it customarily employs and exercises in servicing and administering mortgage loans for its own account, in accordance with accepted mortgage servicing practices of prudent lending institutions servicing mortgage loans similar to the Mortgage Loans and giving due consideration to the Noteholders’, the Enhancer’s and the Trust’s reliance on the Servicer. If the Mortgage did not have a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage had a Lien senior to the related Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date or related Subsequent Cut-Off Date, as applicable, then the Servicer, in such capacity, may consent to the refinancing of such prior senior Lien, provided that (i) the resulting CLTV of such Mortgage Loan is no higher than the greater of the CLTV prior to such refinancing or 100%; (ii) the interest rate for the loan evidencing the refinanced senior Lien is no higher than the interest rate on the loan evidencing the existing senior Lien immediately prior to the date of such refinancing (meaning, in the case of an adjustable rate loan, a substantially similar index and a gross margin no higher than that of the existing senior Lien); and (iii) the loan evidencing the refinanced senior Lien is not subject to negative amortization. In connection with servicing the Mortgage Loans, the Servicer may take reasonable actions to encourage or effect the termination of Loan Agreements that have become dormant. The relationship of the Servicer (and of any successor to the Servicer as servicer under this Agreement) to the Issuer, the Paying Agent and the Indenture Trustee under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. (d) The Servicer may enter into Subservicing Agreements with Subservicers for the servicing and administration of certain of the Mortgage Loans, provided that notwithstanding such appointment, the Servicer shall remain liable for the performance of all servicing duties delegated by it. The Servicer shall provide written notice to the Indenture Trustee, the Paying Agent and the Enhancer upon entering into a Subservicing Agreement. References in this Agreement to actions taken or to be taken by the Servicer in servicing the Mortgage Loans include actions taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually received by such Subservicer in respect of a Mortgage Loan shall be deemed to have been received by the Servicer whether or not actually received by the Servicer. Each Subservicing Agreement will be upon such terms and conditions as are not inconsistent with this Agreement and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a Subservicer may delegate its servicing obligations to third-party servicers, but such Subservicers will remain obligated under the related Subservicing Agreements. The Servicer and the Subservicer may enter into amendments to the related Subservicing Agreements; provided, however, that any such amendments shall not cause the Mortgage Loans to be serviced in a manner that would be materially inconsistent with the standards set forth in this Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in accordance with the terms and conditions thereof and without any limitation by virtue of this Agreement; provided, however, that in the event of termination of any Subservicing Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of the related Mortgage Loan or enter into a Subservicing Agreement with a successor Subservicer which will be bound by the terms of the related Subservicing Agreement. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer and nothing contained in this Agreement shall be deemed to limit or modify such indemnification. In the event that the rights, duties and obligations of the Servicer are terminated hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted by applicable law, terminate the existing Subservicing Agreement with any Subservicer in accordance with the terms of the applicable Subservicing Agreement or assume the terminated Servicer’s rights and obligations under such subservicing arrangements which termination or assumption will not violate the terms of such arrangements. As part of its servicing activities hereunder, the Servicer, for the benefit of the Indenture Trustee, the Paying Agent, the Enhancer and the Securityholders, shall use reasonable efforts to enforce the obligations of each Subservicer under the related Subservicing Agreement, to the extent that the non-performance of any such obligation would have a material adverse effect on a Mortgage Loan. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Subservicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own expense, and shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement to the extent, if any, that such recovery exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.

Appears in 1 contract

Samples: Servicing Agreement (Wachovia Mortgage Loan Trust, LLC)

The Servicer. Washington Mutual ~~Bank~~ Bank, FA shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-2)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the ~~Mortgage~~ WMB-Serviced Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets relating to the WMB-Serviced Loans on behalf of the Trust in order to enforce the terms of the Mortgage ~~Notes~~Notes that are part of the WMB-Serviced Loans. The Servicer may perform its servicing responsibilities through subservicers or other agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such subservicers or other agents or independent contractors; provided, however, that the Servicer shall, if such reports are required to be filed with the Commission as an exhibit to a Report on Form 10-K, (i) cause each such party, if determined by the Servicer to be a party participating in the servicing function within the meaning of Item 1122 of Regulation AB, to deliver to the Servicer the report on assessment of compliance with applicable servicing criteria and the accounting firm’s attestation report described in Section 3.13(c) and (ii) cause each such party, if determined by the Servicer to meet the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB, to deliver to the Servicer the statement of compliance described in Section 3.13(e). The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the ~~Mortgage~~ WMB-Serviced Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the ~~Mortgage~~ WMB-Serviced Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property related to a WMB-Serviced Loan is located. The Servicer shall enforce “due-on-sale” clauses with respect to the ~~related Mortgage~~ WMB-Serviced Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any ~~Mortgage~~ WMB-Serviced Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a ~~Mortgage~~ WMB-Serviced Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note related to a WMB-Serviced Loan or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, the Servicer may waive, modify or vary any term of any ~~Mortgage~~ WMB-Serviced Loan or consent to the postponement of strict compliance with any such term or in any manner grant indulgence to any Mortgagor with respect to a WMB-Serviced Loan if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB-Serviced Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB-Serviced Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the ~~Mortgage~~ WMB-Serviced Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB-Serviced Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such ~~Mortgage~~ WMB-Serviced Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any ~~Mortgage~~ WMB-Serviced Loan that would both constitute a sale or exchange of such ~~Mortgage~~ WMB-Serviced Loan within the meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such ~~Mortgage~~ WMB-Serviced Loan that is treated as a Principal Prepayment or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor with respect to a WMB-Serviced Loan for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related ~~Mortgage~~ WMB-Serviced Loan, that the security for, and the timely and full collectability of, such ~~Mortgage~~ WMB-Serviced Loan would not be adversely affected thereby and that REMIC I, REMIC II and ~~XXXXX XXX~~ REMIC III would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest,~~ Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the ~~Mortgage~~ WMB-Serviced Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the ~~REMIC I Regular Interests and~~ Certificates, the ~~Class R-1 Residual Interest~~ Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any ~~Mortgage~~ WMB-Serviced Loan on the MERS® System or to cause the removal of any ~~Mortgage~~ WMB-Serviced Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable WMB Advance when made. In connection with the servicing and administering of each ~~Mortgage~~ WMB-Serviced Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2006-6)

The Servicer. ~~Washington Mutual Bank~~ In addition, US Foodservice hereby agrees to act as, the Company and the Trustee hereby consent to US Foodservice's being appointed to act as, and the Investor Certificateholders by their acceptance of the Certificates consent to US Foodservice's being appointed to act as, such parties' agent to coordinate the servicing of the Receivables by the Sub-Servicers. In such agency capacities, the Servicer will have responsibility for the management of the servicing and receipt of Collections in respect of the Receivables and will have the authority to make any management decisions relating to the Receivables to the extent such authority is granted to the Servicer under any Pooling and Servicing Agreement. The Company, the Trustee and the Investor Certificateholders shall treat US Foodservice as the Servicer and may conclusively rely on the instructions, notices and reports of US Foodservice as Servicer for so long as US Foodservice is the Servicer. In addition, (x) each Sub-Servicer agrees to act as a Sub-Servicer under each Pooling and Servicing Agreement, (y) the Company and the Trustee hereby consent to such Sub-Servicer's acting as a Sub-Servicer and being appointed their agent to service and administer the ~~Mortgage Loans on behalf~~ Receivables originated by it, and (z) the Investor Certificateholders by their acceptance of the ~~Trust in accordance with~~ Certificates consent to such Sub-Servicer's acting as a Sub-Servicer and being appointed their agent to service and administer the ~~terms hereof~~Receivables originated by it. Each Sub-Servicer will be responsible, ~~consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in~~ as directed by the ~~same manner in which~~Servicer, ~~and with~~ for the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration of the Receivables originated by such Sub-Servicer. RS has executed and delivered the Servicer Guarantee which, among other things, guarantees the obligations and responsibilities of US Foodservice as Servicer hereunder and under the other Transaction Documents. At any time upon at least 10 days' prior written notice to the Trustee, each Rating Agency, each Agent, the Company, and each Sub-Servicer, US Foodservice may assign and RS may accept and assume all rights, titles, interests, responsibilities and obligations of US Foodservice as Servicer hereunder and under the other Transaction Documents. Upon the effectiveness of such assignment, acceptance and assumption (which ~~a prudent servicer of mortgage loans would do~~ shall not require compliance with any other provisions hereunder), RS shall be the Servicer hereunder and under ~~similar circumstances, including~~the other Transaction Documents and US Foodservice, without ~~limitation~~any further action, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall ~~not thereby~~ automatically be released from ~~any of~~ its obligations and responsibilities as Servicer hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing practices, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, REMIC II and XXXXX XXX would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the ServicerTransaction Documents. The Trustee ~~on behalf~~ hereby consents and the Investor Certificateholders by their acceptance of the ~~Trust shall execute~~ Certificates consent to RS acting as Servicer upon such assignment, acceptance and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Freddie Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties that are not paid by the Mortgagors when due to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repositoryassumption.

Appears in 1 contract

Samples: Servicing Agreement (Rykoff Sexton Inc)

The Servicer. Washington Mutual Bank shall act as Servicer to service and administer the Mortgage Loans on behalf of the Trust in accordance with the terms hereof, consistent with prudent mortgage loan servicing practices and (unless inconsistent with prudent mortgage loan servicing practices) in the same manner in which, and with the same care, skill, prudence and diligence with which, it services and administers similar mortgage loans for other portfolios, and shall have full power and authority to do or cause to be done any and all things in connection with such servicing and administration which a prudent servicer of mortgage loans would do under similar circumstances, including, without limitation, the power and authority to bring actions and defend the Mortgage Pool Assets on behalf of the Trust in order to enforce the terms of the Mortgage Notes. The Servicer may perform its servicing responsibilities through agents or independent contractors, but shall not thereby be released from any of its responsibilities hereunder and the Servicer shall diligently pursue all of its rights against such agents or independent contractors. The Servicer shall make reasonable efforts to collect or cause to be collected all payments called for under the terms and provisions of the Mortgage Loans and shall, to the extent such procedures shall be consistent with this Agreement and the terms and provisions of any Primary Insurance Policy, any FHA insurance policy or VA guaranty, any hazard insurance policy, and federal flood insurance, cause to be followed such collection procedures as are followed with respect to mortgage loans comparable to the Mortgage Loans and held in portfolios of responsible mortgage lenders in the local areas where each Mortgaged Property is located. The Servicer shall enforce “due-on-sale” clauses with respect to the related Mortgage Loans, to the extent permitted by law, subject to the provisions set forth in Section 3.08. Consistent with the foregoing, the Servicer may, in accordance with prudent mortgage loan servicing ~~practices~~practices and subject to Section 3.20, (i) waive or cause to be waived any assumption fee or late payment charge in connection with the prepayment of any Mortgage Loan and (ii) only upon determining that the coverage of any applicable insurance policy or guaranty related to a Mortgage Loan will not be materially adversely affected, arrange a schedule, running for no more than 180 days after the first delinquent Due Date, for payment of any delinquent installment on any Mortgage Note or for the liquidation of delinquent items. Consistent with the terms of this Section 3.01, 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 it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected by such waiver, modification, postponement or indulgence; provided, however, that (unless the Mortgagor is in default with respect to the Mortgage Loan or in the reasonable judgment of the Servicer such default is imminent) the Servicer shall not permit any modification with respect to any Mortgage Loan that would (i) change the applicable Mortgage Interest Rate, defer or forgive the payment of any principal or interest, reduce the outstanding principal balance (except for actual payments of principal) or extend the final maturity date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty, hazard insurance policy or federal flood insurance policy. Notwithstanding the foregoing, the Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or exchange of such Mortgage Loan within the meaning of Section 1001 of the Code (including 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 or in a default situation) and cause any REMIC to fail to qualify as such under the Code. The Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, the granting of an easement thereon in favor of another Person, any alteration or demolition of the related Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the same manner as it would if it were the owner of the related Mortgage Loan, that the security for, and the timely and full collectability of, such Mortgage Loan would not be adversely affected thereby and that REMIC I, I and REMIC II ~~and XXXXX XXX~~ would not fail to continue to qualify as REMICs under the Code as a result thereof and that no tax on “prohibited transactions” or “contributions” after the startup day would be imposed on any REMIC as a result thereof. The Servicer is hereby authorized and empowered by the Trust to, and shall, execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest, the Trustee and the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release, discharge or modification, assignments of Mortgages and endorsements of Mortgage Notes in connection with refinancings (in jurisdictions where such assignments are the customary and usual standard of practice of mortgage lenders) and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. The Servicer is hereby further authorized and empowered by the Trust to execute and deliver or cause to be executed and delivered on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual ~~Interest~~ Interest, the Trustee and the Trust, or any of them, such instruments of assignment or other comparable instruments as the Servicer shall, in its sole judgment, deem appropriate in order to register any Mortgage Loan on the MERS® System or to cause the removal of any Mortgage Loan from registration thereon. Any expenses incurred in connection with the actions described in the preceding sentence shall be borne by the Servicer with no right of reimbursement; provided, however, that any such expenses incurred as a result of any termination by MERS of the MERS® System shall be reimbursable to the Servicer. The Trustee on behalf of the Trust shall execute and furnish to the Servicer, at the Servicer’s direction, any powers of attorney and other documents prepared by the Servicer and determined by the Servicer to be necessary or appropriate to enable the Servicer to carry out its supervisory, servicing and administrative duties under this Agreement. The Servicer shall obtain (to the extent generally commercially available) and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or ~~Freddie~~ Xxxxxxx Mac with respect to its obligations under this Agreement. The Servicer shall establish escrow accounts for, or pay when due (by means of an advance), any tax liens in connection with the Mortgaged Properties and premiums with respect to any insurance required to be maintained by the Servicer under Section 3.06 and 3.07, to the extent that such amounts are not paid by the Mortgagors when due and to the extent that any such payment would not constitute a Nonrecoverable Advance when made. In connection with the servicing and administering of each Mortgage Loan, the Servicer and any affiliate of the Servicer (i) may perform services such as appraisals, default management and (in the case of affiliates only) brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor ~~and (ii) may, at its own discretion and on behalf of the Trust, obtain credit information in the form of a “credit score” from a credit repository.~~and

Appears in 1 contract

Samples: Pooling and Servicing Agreement

Common use of The Servicer Clause in Contracts