FLOW INTERIM SERVICING AGREEMENT between Lehman Brothers Bank, FSB, Purchaser and Greenpoint Mortgage Funding, Inc. Interim Servicer Dated as of December 12, 2001 CONVENTIONAL FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS Group No. 2001-
between
Xxxxxx
Brothers Bank, FSB,
Purchaser
and
Greenpoint
Mortgage Funding, Inc.
Interim
Servicer
Dated
as
of December 12, 2001
CONVENTIONAL
FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS
Group
No.
2001-
TABLE
OF CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
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Section
1.01
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Definitions
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1
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ARTICLE
II
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SERVICING
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Section
2.01
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Interim
Servicer to Act as Servicer
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4
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Section
2.02
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Liquidation
of Mortgage Loans
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6
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Section
2.03
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Collection
of Mortgage Loan Payments
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6
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Section
2.04
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Establishment
of and Deposits to Custodial Account
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6
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Section
2.05
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Permitted
Withdrawals From Custodial Account
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8
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Section
2.06
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Establishment
of and Deposits to Escrow Account
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8
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Section
2.07
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Permitted
Withdrawals From Escrow Account
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9
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Section
2.08
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Payment
of Taxes, Insurance and Other Charges
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10
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Section
2.09
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PMI
Obligations
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10
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Section
2.10
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Protection
of Accounts
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10
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Section
2.11
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Maintenance
of Hazard Insurance
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11
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Section
2.12
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Maintenance
of Mortgage Impairment Insurance
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12
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Section
2.13
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance
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13
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Section
2.14
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Inspections
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13
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Section
2.15
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Restoration
of Mortgaged Property
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13
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Section
2.16
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Maintenance
of PMI Policy; Claims
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Section
2.17
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Title,
Management and Disposition of REO Property
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15
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Section
2.18
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Permitted
Withdrawals with respect to REO Property
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17
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Section
2.19
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Real
Estate Owned Reports
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17
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Section
2.20
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Liquidation
Reports
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17
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Section
2.21
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Notification
of Adjustments
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17
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Section
2.22
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Reports
of Foreclosures and Abandonments of Mortgaged Property
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17
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ARTICLE
III
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PAYMENTS
TO PURCHASER
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Section
3.01
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Remittances
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18
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Section
3.02
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Statements
to Purchaser
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18
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Section
3.03
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Principal
and Interest Advances by Interim Servicer
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18
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i
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ARTICLE
IV
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GENERAL
SERVICING PROCEDURES
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Section
4.01
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Transfers
of Mortgaged Property
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19
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Section
4.02
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Satisfaction
of Mortgages and Release of Mortgage Files
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19
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Section
4.03
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Servicing
Compensation
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20
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Section
4.04
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Annual
Statement as to Compliance
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20
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Section
4.05
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Annual
Independent Public Accountants’ Servicing Report
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20
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Section
4.06
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Right
to Examine Interim Servicer Records
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21
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ARTICLE
V
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INTERIM
SERVICER TO COOPERATE
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Section
5.01
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Provision
of Information
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21
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Section
5.02
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Financial
Statements; Servicing Facilities
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21
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ARTICLE
VI
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TERMINATION
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Section
6.01
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Damages
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22
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Section
6.02
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Termination
Upon Transfer of Servicing.
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22
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Section
6.03
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Servicing
Transfer Provisions.
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ARTICLE
VII
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BOOKS
AND RECORDS
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Section
7.01
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Possession
of Servicing Files Prior to the Transfer Date
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24
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ARTICLE
VIII
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INDEMNIFICATION
AND ASSIGNMENT
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Section
8.01
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Indemnification
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25
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Section
8.02
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Limitation
on Liability of Interim Servicer and Others
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26
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Section
8.03
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Limitation
on Resignation and Assignment by Interim Servicer
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26
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Section
8.04
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Assignment
by Purchaser
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27
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ii
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ARTICLE
IX
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
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Section
9.01
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Authority
and Capacity
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27
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Section
9.02
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Assistance
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27
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ARTICLE
X
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REPRESENTATIONS
AND WARRANTIES OF INTERIM SERVICER
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Section
10.01
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Due
Organization and Authority
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27
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Section
10.02
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Ordinary
Course of Business
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28
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Section
10.03
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No
Conflicts
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28
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Section
10.04
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Ability
to Service
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28
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Section
10.05
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Ability
to Perform
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28
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Section
10.06
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No
Litigation Pending
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28
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Section
10.07
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No
Consent Required
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29
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Section
10.08
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No
Untrue Information
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29
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Section
10.09
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Computer
Systems
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ARTICLE
XI
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DEFAULT
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Section
11.01
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Events
of Default
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29
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Section
11.02
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Waiver
of Defaults
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30
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ARTICLE
XII
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MISCELLANEOUS
PROVISIONS
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Section
12.01
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Notices
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30
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Section
12.02
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Waivers
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31
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Section
12.03
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Entire
Agreement; Amendment
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31
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Section
12.04
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Execution;
Binding Effect
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31
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Section
12.05
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Headings
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31
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Section
12.06
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Applicable
Law
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31
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Section
12.07
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Relationship
of Parties
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32
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Section
12.08
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Severability
of Provisions
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32
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Section
12.09
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Recordation
of Assignments of Mortgage
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32
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iii
EXHIBITS
EXHIBIT
1 FORM
OF
MONTHLY REMITTANCE ADVICE
EXHIBIT
2 FORM
OF
CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT
3 FORM
OF
CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT
4 FORM
OF
ESCROW ACCOUNT CERTIFICATION
EXHIBIT
5 FORM
OF
ESCROW ACCOUNT LETTER AGREEMENT
iv
This
Flow
Interim Servicing Agreement (the “Agreement”) is entered into as of the
12th
day of
December 2001, by and between GREENPOINT MORTGAGE FUNDING INC. (the
“Interim
Servicer”),
a
California corporation and XXXXXX BROTHERS BANK, FSB, a Delaware corporation
(the “Purchaser”).
WHEREAS,
the Purchaser and Interim Servicer entered into a Mortgage Loan Purchase and
Warranties Agreement dated as of the date hereof (the “Purchase Agreement”)
pursuant to which the Purchaser shall, from time to time, purchase from the
Seller certain conventional, residential, fixed and adjustable rate first and
second lien mortgage loans (the “Mortgage
Loans”)
delivered as whole loans on a servicing released basis (each delivery of
Mortgage Loans, a “Mortgage
Loan Package”);
and
WHEREAS,
the Purchaser desires to have the Interim Servicer service the Mortgage Loans
in
each Mortgage Loan Package during the period between the related Closing Date
and the related Transfer Date (the “Interim
Period”),
the
Interim Servicer desires to service and administer the Mortgage Loans on behalf
of the Purchaser during the Interim Period, and the parties desire to provide
the terms and conditions of such interim servicing by the Interim
Servicer.
NOW,
THEREFORE, in consideration of the mutual covenants made herein and for other
good and valuable consideration the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Purchase Agreement. The following terms are defined as follows
(except as otherwise agreed by the parties).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located.
Agreement:
This
agreement between the Purchaser and the Interim Servicer for the interim
servicing and administration of the Mortgage Loans.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to
Section 2.04.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; and
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by Xxxxx’x Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by Xxxxx’x
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least “Aa” by
Xxxxx’x Investors Service, Inc.
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to
Section 2.06.
Escrow
Payment:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
-2-
Event
of Default:
Any one
of the conditions or circumstances enumerated in
Section 11.01.
Fidelity
Bond:
A
fidelity bond to be maintained by the Interim Servicer pursuant to
Section 2.13.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Selling Guide and the Xxxxxx Mae Servicing Guide and all amendments
or additions thereto.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interim
Period:
The
period between the related Closing Date and the related Transfer
Date.
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in
Section 2.12.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the sum
of
(a) the Servicing Fee and (b) the LPMI Fee, if any.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal.
Purchase
Agreement:
The
Flow Mortgage Loan Purchase and Warranties Agreement between the Purchaser
and
the Interim Servicer related to the purchase of the Mortgage Loans dated as
of
the related Cut-off Date.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF or
the
SAIF and the debt obligations of which are rated AA or better by Standard &
Poor’s Corporation.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Remittance
Date:
The
10th day (or if such 10th day is not a Business Day, the first Business Day
immediately following) of any month, beginning with the first Remittance
Date.
-3-
REO
Disposition:
The
final sale by the Interim Servicer of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to
Section 2.17.
REO
Property:
A
Mortgaged Property acquired by the Interim Servicer on behalf of the Purchaser
through foreclosure or by deed in lieu of foreclosure, as described in
Section 2.17.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Interim Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, restoration and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of
the Mortgage and (d) compliance with the obligations under
Section 2.08.
Servicing
Fee:
With
respect to each Mortgage Loan, an amount equal to $[REDACTED] per month. Such
fee shall be payable monthly and shall be pro rated for any portion of a month
during which the Mortgage Loans is serviced pursuant to this Agreement. The
obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section 2.05) of such Monthly Payment collected by the Interim Servicer, or
as otherwise provided under Section 2.05.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Interim Servicer
consisting of originals of all documents in the Mortgage File which are not
delivered to the Purchaser or the Custodian for the benefit of the Purchaser
and
copies of the Mortgage Loan Documents listed on Exhibit
B
to the
Purchase Agreement.
Servicing
Officer:
Any
officer of the Interim Servicer involved in or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a
list
of servicing officers furnished by the Interim Servicer to the Purchaser upon
request, as such list may from time to time be amended.
Transfer
Date:
With
respect to any Mortgage Loan Package, the date mutually agreed upon by the
Interim Servicer and the Purchaser and set forth on the Acknowledgment
Agreement, which shall not be more than 60 days following the related Closing
Date, unless Purchaser notifies the Interim Servicer that a longer period of
time is needed..
ARTICLE
II
SERVICING
Section
2.01 Interim
Servicer to Act as Servicer. With
respect to the Mortgage Loans in each Mortgage Loan Package purchased by the
Purchaser from the Interim Servicer, from and after the related Closing Date
the
Interim Servicer, as an independent contractor, shall service and administer
the
Mortgage Loans and shall have full power and authority, acting alone, to do
any
and all things in connection with such servicing and administration which the
Interim Servicer may deem necessary or desirable, consistent with the terms
of
this Agreement and with Accepted Servicing Practices.
-4-
Consistent
with the terms of this Agreement, the Interim Servicer may waive, modify or
vary
any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the Interim Servicer’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Interim Servicer has obtained
the
prior written consent of the Purchaser, the Interim Servicer shall not permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, defer or forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage Loan. In the
event of any such modification which permits the deferral of interest or
principal payments on any Mortgage Loan, the Interim Servicer shall, on the
Business Day immediately preceding the Remittance Date in any month in which
any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 2.04, the difference
between (a) such month’s principal and one month’s interest at the Mortgage
Loan Remittance Rate on the unpaid principal balance of such Mortgage Loan
and
(b) the amount paid by the Mortgagor. The Interim Servicer shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 2.05. Without limiting the generality of
the foregoing, the Interim Servicer shall continue, and is hereby authorized
and
empowered, to execute and deliver on behalf of itself and the Purchaser, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. If reasonably required
by
the Interim Servicer, the Purchaser shall furnish the Interim Servicer with
any
powers of attorney and other documents necessary or appropriate to enable the
Interim Servicer to carry out its servicing and administrative duties under
this
Agreement.
In
servicing and administering the Mortgage Loans, the Interim Servicer shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser’s reliance on the Interim
Servicer.
The
Interim Servicer shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, the Interim Servicer
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may
be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, Interim Servicer shall be under no obligation to
deal with any Person with respect to this Agreement or the Mortgage Loans unless
the Interim Servicer has been notified of such transfers as provided in this
Section 2.01. The Purchaser may sell and transfer, in whole or in part, the
Mortgage Loans, provided that no such sale and transfer shall be binding upon
Interim Servicer unless such transferee shall agree in writing in the form
of
the Assignment and Assumption Agreement attached to the Purchase Agreement
as
Exhibit H, to be bound by the terms of this Agreement and the Purchase
Agreement, and an executed copy of the same shall have been delivered to the
Interim Servicer. Upon receipt thereof, Interim Servicer shall xxxx its books
and records to reflect the ownership of the Mortgage Loans by such assignee,
and
the previous Purchaser shall be released from its obligations hereunder. This
Agreement shall be binding upon and inure to the benefit of the Purchaser and
Interim Servicer and their permitted successors, assignees and
designees.
Section
2.02 Liquidation
of Mortgage Loans.
In the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 is not paid when the same becomes due and payable, or in the
event the Mortgagor fails to perform any other covenant or obligation under
the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Interim Servicer shall take such action as (1) the Interim Servicer would
take under similar circumstances with respect to a similar mortgage loan held
for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Interim Servicer shall determine prudently to
be in the best interest of Purchaser, and (4) is consistent with any
related PMI Policy. In the event that any payment due under any Mortgage Loan
is
not postponed pursuant to Section 2.01 and remains delinquent for a period
of 90 days or any other default continues for a period of 90 days beyond
the expiration of any grace or cure period, the Interim Servicer shall commence
foreclosure proceedings, provided that, prior to commencing foreclosure
proceedings, the Interim Servicer shall notify the Purchaser in writing of
the
Interim Servicer’s
intention to do so, and the Interim Servicer shall not commence foreclosure
proceedings if the Purchaser objects to such action within 10 Business Days
of
receiving such notice. In such connection, the Interim Servicer shall from
its
own funds make all necessary and proper Servicing Advances, provided, however,
that the Interim Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration or preservation
of
any Mortgaged Property, unless it shall determine (a) that such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to
Section 2.05) or through Insurance Proceeds (respecting which it shall have
similar priority).
Section
2.03 Collection
of Mortgage Loan Payments.
Continuously from the related Cut-off Date until the related Transfer
Date the Interim Servicer shall proceed diligently to collect all payments
due under each of the Mortgage Loans when the same shall become due and payable
and shall take special care in ascertaining and estimating Escrow Payments
and
all other charges that will become due and payable with respect to the Mortgage
Loans and each related Mortgaged Property, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section
2.04 Establishment
of and Deposits to Custodial Account.
The
Interim Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled “Greenpoint Mortgage
Funding Inc. in trust for Xxxxxx Brothers Bank, FSB, Residential Fixed and
Adjustable Rate Mortgage Loans, Group No. 2001- ___ and various Mortgagors”. The
Custodial Account shall be established with a Qualified Depository acceptable
to
the Purchaser. Any funds deposited in the Custodial Account shall at all times
be fully insured to the full extent permitted under applicable law. Funds
deposited in the Custodial Account may be drawn on by the Interim Servicer
in
accordance with Section 2.05. The creation of any Custodial Account shall
be evidenced by a certification in the form of Exhibit 2 hereto, in the case
of
an account established with the Interim Servicer, or by a letter agreement
in
the form of Exhibit 3 hereto, in the case of an account held by a depository
other than the Interim Servicer. A copy of such certification or letter
agreement shall be furnished to the Purchaser and, upon request, to any
subsequent Purchaser.
-5-
The
Interim Servicer shall deposit in the Custodial Account on a daily basis, and
retain therein, the following collections received by the Interim Servicer
after
the related Cut-off Date (other than with respect to each LPMI Loan, in the
amount of the LPMI Fee):
(i) all
payments on account of principal on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 2.11 (other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or released
to
the Mortgagor in accordance with Section 2.15), Section 2.12 and
Section 2.16;
(v) all
Condemnation Proceeds which are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with
Section 2.15;
(vi) any
amount required to be deposited in the Custodial Account pursuant to
Section 2.01, 2.10, 2.17, 4.01 or 4.02;
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to the terms of the Purchase Agreement; and
(viii) any
amounts required to be deposited by the Interim Servicer pursuant to
Section 2.11 in connection with the deductible clause in any blanket hazard
insurance policy.
(ix) any
prepayment penalties, late payment charges and assumption fees received in
connection with the Mortgage Loans.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of assumption fees, to the extent
permitted by Section 4.01, need not be deposited by the Interim Servicer
into the Custodial Account. Any interest paid on funds deposited in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Interim Servicer and the Interim Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to
Section 2.05.
-6-
Section
2.05 Permitted
Withdrawals From Custodial Account.
The
Interim Servicer shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 3.01;
(ii) to
reimburse itself for unreimbursed Servicing Advances, any unpaid Servicing
Fees
and for unreimbursed advances of Interim Servicer funds made pursuant to Section
2.17, the Interim Servicer’s right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Interim Servicer from the Mortgagor or
otherwise relating to the Mortgage Loan, it being understood that, in the case
of any such reimbursement, the Interim Servicer’s right thereto shall be prior
to the rights of the Purchaser except that, where the Interim Servicer is
required to repurchase a Mortgage Loan pursuant to the terms of the Purchase
Agreement or Section 4.02 of this Agreement, the Interim Servicer’s right
to such reimbursement shall be subsequent to the payment to the Purchaser of
the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iii) to
pay
itself interest on funds deposited in the Custodial Account;
(iv) to
reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 4.03;
(v) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(vi) to
withdraw funds deposited in error.
In
the
event that the Custodial Account is interest bearing, on each Remittance Date,
the Interim Servicer shall withdraw all funds from the Custodial Account except
for those amounts which, pursuant to Section 3.01, the Interim Servicer is
not obligated to remit on such Remittance Date. The Interim Servicer may use
such withdrawn funds only for the purposes described in this
Section 2.05.
Section
2.06 Establishment
of and Deposits to Escrow Account.
The
Interim Servicer shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Escrow Accounts, in the form of
time deposit or demand accounts, titled, “Greenpoint Mortgage Funding Inc., in
trust for Xxxxxx Brothers Bank, FSB Residential Fixed and Adjustable Rate
Mortgage Loans, Group No. 2001- ____, and various Mortgagors”. The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Funds deposited in the
Escrow Account may be drawn on by the Interim Servicer in accordance with
Section 2.07. The creation of any Escrow Account shall be evidenced by a
certification in the form of Exhibit 4 hereto, in the case of an account
established with the Interim Servicer, or by a letter agreement in the form
of
Exhibit 5 hereto, in the case of an account held by a depository other than
the Interim Servicer. A copy of such certification shall be furnished to the
Purchaser and, upon request, to any subsequent Purchaser.
-7-
The
Interim Servicer shall deposit in the Escrow Account or Accounts on a daily
basis, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Interim Servicer shall make withdrawals from the Escrow Account only to effect
such payments as are required under this Agreement, as set forth in
Section 2.07. The Interim Servicer shall be entitled to retain any interest
paid on funds deposited in the Escrow Account by the depository institution,
other than interest on escrowed funds required by law to be paid to the
Mortgagor. To the extent required by law, the Interim Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section
2.07 Permitted
Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Interim
Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Interim Servicer for any Servicing Advance made by the Interim
Servicer pursuant to Section 2.08 with respect to a related Mortgage Loan,
but only from amounts received on the related Mortgage Loan which represent
late
collections of Escrow Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 2.15;
-8-
(vi) to
pay to
the Interim Servicer, or any Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
Section
2.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Interim Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Interim Servicer in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage. To the extent that a Mortgage does
not
provide for Escrow Payments, the Interim Servicer shall determine that any
such
payments are made by the Mortgagor at the time they first become due. The
Interim Servicer assumes full responsibility for the timely payment of all
such
bills and shall effect timely payment of all such charges irrespective of each
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments, and the Interim Servicer shall make advances from its own
funds
to effect such payments.
Section
2.09 PMI
Obligations. The
Interim Servicer shall comply with all provisions of applicable state and
federal law relating to the cancellation of, or collection of premiums
with respect to, PMI Policies, including, but not limited to, the provisions
of
the Homeowners Protection Act of 1998, and all regulations promulgated
thereunder, as amended from time to time. If the Mortgagor fails to pay any
PMI
Policy premium, the Interim Servicer shall be obligated to make such premium
payments.
Section
2.10 Protection
of Accounts.
The
Interim Servicer may transfer the Custodial Account or the Escrow Account to
a
different Qualified Depository from time to time. Such transfer shall be made
only upon obtaining the consent of the Purchaser, which consent shall not be
withheld unreasonably.
The
Interim Servicer shall bear any expenses, losses or damages sustained by the
Purchaser because the Custodial Account and/or the Escrow Account are not demand
deposit accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Interim Servicer be invested in Eligible Investments; provided that in
the
event that amounts on deposit in the Custodial Account or the Escrow Account
exceed the amount fully insured by the FDIC (the “Insured Amount”) the Interim
Servicer shall be obligated to invest the excess amount over the Insured Amount
in Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Determination Date next following
the
date of such Eligible Investment, provided, however, that if such Eligible
Investment is an obligation of a Qualified Depository (other than the Interim
Servicer) that maintains the Custodial Account or the Escrow Account, then
such
Eligible Investment may mature on such Remittance Date. Any such Eligible
Investment shall be made in the name of the Interim Servicer in trust for the
benefit of the Purchaser. All income on or gain realized from any such Eligible
Investment shall be for the benefit of the Interim Servicer and may be withdrawn
at any time by the Interim Servicer. Any losses incurred in respect of any
such
investment shall be deposited in the Custodial Account or the Escrow Account,
by
the Interim Servicer out of its own funds immediately as realized.
-9-
Section
2.11 Maintenance
of Hazard Insurance.
The
Interim Servicer shall cause to be maintained for each Mortgage Loan, hazard
insurance such that all buildings upon the Mortgaged Property are insured by
a
generally acceptable insurer rated A:VI or better in the current Best’s Key
Rating Guide (“Best’s”)
against loss by fire, hazards of extended coverage and such other hazards as
are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the improvements securing such Mortgage Loan and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier rated A:VI or better in Best’s in an amount
representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and
(ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during the term
of
the Mortgage Loan, the Interim Servicer determines in accordance with applicable
law and pursuant to the FNMA Guides that a Mortgaged Property is located in
a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Interim Servicer shall notify the related Mortgagor that
the Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty-five (45)
days after such notification, the Interim Servicer shall immediately force
place
the required flood insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Interim Servicer
shall verify that the coverage required of the owner’s association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current Xxxxxx Xxx requirements, and secure from the
owner’s association its agreement to notify the Interim Servicer promptly of any
change in the insurance coverage or of any condemnation or casualty loss that
may have a material effect on the value of the Mortgaged Property as
security.
-10-
The
Interim Servicer shall cause to be maintained on each Mortgaged Property
earthquake or such other or additional insurance as may be required pursuant
to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance, or pursuant to the requirements of
any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In
the
event that the Purchaser or the Interim Servicer shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and
risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Interim Servicer shall communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to
the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Interim Servicer as loss payee and
shall be endorsed with standard or New York mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice
of
any cancellation, reduction in amount or material change in
coverage.
The
Interim Servicer shall not interfere with the Mortgagor’s freedom of choice in
selecting either his insurance carrier or agent, provided, however, that the
Interim Servicer shall not accept any such insurance policies from insurance
companies unless such companies are rated A:VI or better in Best’s and are
licensed to do business in the jurisdiction in which the Mortgaged Property
is
located. The Interim Servicer shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner,
and
that they properly describe the property address. The Interim Servicer shall
furnish to the Mortgagor a formal notice of expiration of any such insurance
in
sufficient time for the Mortgagor to arrange for renewal coverage by the
expiration date.
Pursuant
to Section 2.04, any amounts collected by the Interim Servicer under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to
the
Mortgagor, in accordance with the Interim Servicer’s normal servicing procedures
as specified in Section 2.15) shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.05.
Section
2.12 Maintenance
of Mortgage Impairment Insurance.
In the
event that the Interim Servicer shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 2.11
and otherwise complies with all other requirements of Section 2.11, it
shall conclusively be deemed to
have
satisfied its obligations as set forth in Section 2.11. Any amounts
collected by the Interim Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 2.05. Such policy may contain a deductible clause, in which
case, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 2.11, and there shall
have been a loss which would have been covered by such policy, the Interim
Servicer shall deposit in the Custodial Account at the time of such loss the
amount not otherwise payable under the blanket policy because of such deductible
clause,
such amount to be deposited from the Interim Servicer’s funds, without
reimbursement therefor. Upon request of the Purchaser, the Interim Servicer
shall cause to be delivered to the Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without 30 days’ prior written notice
to the Purchaser.
-11-
Section
2.13 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Interim Servicer shall maintain with responsible companies, at its own expense,
a blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with
broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Mortgage Loans (“Interim
Servicer Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Interim Servicer against losses, including forgery, theft, embezzle-ment, fraud,
errors and omissions and negligent acts of such Interim Servicer Employees.
Such
Fidelity Bond and Errors and Omissions Insurance Policy also shall protect
and
insure the Interim Servicer against losses in connection with the release or
satisfaction of a Mortgage Loan without having obtained payment in full of
the
indebtedness secured thereby. No provision of this Section 2.13 requiring
such Fidelity Bond and Errors and Omissions Insurance Policy shall diminish
or
relieve the Interim Servicer from its duties and obligations as set forth in
this Agreement. The minimum coverage under any such bond and insurance policy
shall be at least equal to the corresponding amounts required by Xxxxxx Mae
in
the Xxxxxx Xxx Guides or by Xxxxxxx Mac in the Xxxxxxx Mac Interim Servicers’
& Servicers’ Guide. Upon the request of the Purchaser, the Interim Servicer
shall cause to be delivered to the Purchaser a certified true copy of such
fidelity bond and insurance policy and a statement from the surety and the
insurer that such fidelity bond and insurance policy shall in no event be
terminated or materially modified without 30 days’ prior written notice to the
Purchaser.
Section
2.14 Inspections.
The
Interim Servicer shall inspect the Mortgaged Property as often as deemed
necessary by the Interim Servicer to assure itself that the value of the
Mortgaged Property is being preserved. In addition, if any Mortgage Loan is
more
than 60 days delinquent, the Interim Servicer immediately shall inspect the
Mortgaged Property and shall conduct subsequent inspections in accordance with
Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. The Interim Servicer shall keep a written report of each
such
inspection.
Section
2.15 Restoration
of Mortgaged Property.
The
Interim Servicer need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. At a minimum, the Interim
Servicer shall comply with the following conditions in connection with any
such
release of Insurance Proceeds or Condemnation Proceeds:
(i) the
Interim Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
-12-
(ii) the
Interim Servicer shall take all steps necessary to preserve the priority of
the
lien of the Mortgage, including, but not limited to requiring waivers with
respect to mechanics’ and materialmen’s liens;
(iii) the
Interim Servicer shall verify that the Mortgage Loan is not in default;
and
(iv) pending
repairs or restoration, the Interim Servicer shall place the Insurance Proceeds
or Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Interim Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Purchaser.
Section
2.16 Maintenance
of PMI Policy and LPMI Policy; Claims.
(a)
With
respect to each Mortgage Loan with a LTV in excess of 80%, the Interim Servicer
shall:
(i)
with
respect to Mortgage Loans which are not LPMI Loans, in accordance with state
and
federal laws, the Interim Servicer shall, without any cost to the Purchaser,
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy insuring that portion of the Mortgage Loan in excess of 75% of value,
and
shall pay or shall cause the Mortgagor to pay the premium thereon on a timely
basis, until the LTV of such Mortgage Loan is reduced to 80%. In the event
that
such PMI Policy shall be terminated, the Interim Servicer shall obtain from
another Qualified Insurer a comparable replacement policy, with a total coverage
equal to the remaining coverage of such terminated PMI Policy. If the insurer
shall cease to be a Qualified Insurer, the Interim Servicer shall determine
whether recoveries under the PMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Interim
Servicer shall in no event have any responsibility or liability for any failure
to recover under the PMI Policy for such reason. If the Interim Servicer
determines that recoveries are so jeopardized, it shall notify
the Purchaser and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Interim Servicer shall not take
any
action which would result in noncoverage under any applicable PMI Policy of
any
loss which, but for the actions of the Interim Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into pursuant to Section 4.01, the Interim Servicer
shall promptly notify the insurer under the related PMI Policy, if any, of
such
assumption or substitution of liability in accordance with the terms of such
PMI
Policy and shall take all actions which may be required by such insurer as
a
condition to the continuation of coverage under such PMI Policy. If such PMI
Policy is terminated as a result of such assumption or substitution of
liability, the Interim Servicer shall obtain a replacement PMI Policy as
provided above.
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(ii)
with
respect to LPMI Loans, maintain in full force and effect an LPMI Policy insuring
that portion of the Mortgage Loan in excess of 75% (or such other percentage
as
stated in the related Acknowledgment Agreement) of value, and from time to
time,
withdraw the LPMI Fee with respect to such LPMI Loan from the Custodial Account
in order to pay the premium thereon on a timely basis, until the LTV of such
Mortgage Loan is reduced to 80%. In the event that the interest payments made
with respect to any LPMI Loan are less than the LPMI Fee, the Interim Servicer
shall advance from its own funds the amount of any such shortfall in the LPMI
Fee, in payment of the premium on the related LPMI Policy. Any such advance
shall be a Servicing Advance subject to reimbursement pursuant to the provisions
on Section 2.05. In the event that such LPMI Policy shall be terminated, the
Interim Servicer shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated LPMI Policy, at substantially the same fee level. If the insurer
shall cease to be a Qualified Insurer, the Interim Servicer shall determine
whether recoveries under the LPMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Interim
Servicer shall in no event have any responsibility or liability for any failure
to recover under the LPMI Policy for such reason. If the Interim Servicer
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Interim Servicer shall not take any action
which would result in noncoverage under any applicable LPMI Policy of any loss
which, but for the actions of the Interim Servicer would have been covered
thereunder. In connection with any assumption or substitution agreement entered
into or to be entered into pursuant to Section 6.01, the Interim Servicer shall
promptly notify the insurer under the related LPMI Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
LPMI Policy and shall take all actions which may be required by such insurer
as
a condition to the continuation of coverage under such PMI Policy. If such
LPMI
Policy is terminated as a result of such assumption or substitution of
liability, the Interim Servicer shall obtain a replacement LPMI Policy as
provided above.
(b) In
connection with its activities as servicer, the Interim Servicer agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy in a timely fashion in accordance with the terms
of
such PMI Policy or LPMI Policy and, in this regard, to take such action as
shall
be necessary to permit recovery under any PMI Policy or LPMI Policy respecting
a
defaulted Mortgage Loan. Pursuant to Section 2.04, any amounts collected by
the Interim Servicer under any PMI Policy or LPMI Policy shall be deposited
in
the Custodial Account, subject to withdrawal pursuant to
Section 2.05.
(c) Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional PMI
Policy on any Mortgage Loan which already has a PMI Policy in place, or (ii)
obtain a PMI Policy for any Mortgage Loan which does not already have a PMI
Policy in place. In any event, the Interim Servicer agrees to administer such
PMI Policies in accordance with the Agreement or any Reconstitution
Agreement.
Section
2.17 Title,
Management and Disposition of REO Property. In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Interim Servicer, or such other name as the Purchaser should
designate. The Person or Persons holding such title other than the Purchaser
shall acknowledge in writing that such title is being held as nominee for the
Purchaser.
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The
Interim Servicer shall manage, conserve, protect and operate each REO Property
for the Purchaser solely for the purpose of its prompt disposition and sale.
The
Interim Servicer, either itself or through an agent selected by the Interim
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property
in
the same locality as the REO Property is managed. The Interim Servicer shall
attempt to sell the same (and may temporarily rent the same for a period not
greater than one year, except as otherwise provided below) on such terms and
conditions as the Interim Servicer deems to be in the best interest of the
Purchaser.
The
Interim Servicer shall use its best efforts to dispose of the REO Property
as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless the Interim Servicer
determines, and gives an appropriate notice to the Purchaser to such effect,
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Interim
Servicer shall report monthly to the Purchaser as to the progress being made
in
selling such REO Property and (ii) if, with the written consent of the
Purchaser, a purchase money mortgage is taken in connection with such sale,
such
purchase money mortgage shall name the Interim Servicer as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate participation agreement among the Interim Servicer and
Purchaser shall be entered into with respect to such purchase money mortgage.
The
Interim Servicer shall also maintain on each REO Property fire and hazard
insurance with extended coverage in an amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The
disposition of REO Property shall be carried out by the Interim Servicer at
such
price, and upon such terms and conditions, as the Interim Servicer deems to
be
in the best interests of the Purchaser. The proceeds of sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as practical
thereafter the expenses of such sale shall be paid and the Interim Servicer
shall reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to this Section, and
on
the Remittance Date immediately following the Principal Prepayment Period in
which such sale proceeds are received the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the Purchaser.
With
respect to each REO Property, the Interim Servicer shall hold all funds
collected and received in connection with the operation of the REO Property
in
the Custodial Account. The Interim Servicer shall cause to be deposited on
a
daily basis upon the receipt thereof in each Custodial Account all revenues
received with respect to the conservation and disposition of the related REO
Property.
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Notwithstanding
the foregoing, at any time and from time to time, the Purchaser may at its
election terminate this Agreement with respect to one or more REO Properties
as
provided by Section 6.03(c).
Section
2.18 Permitted
Withdrawals with respect to REO Property.
The
Interim Servicer shall withdraw REO funds on deposit in the Custodial Account
with respect to each related REO Property necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 2.11 and the fees of
any managing agent acting on behalf of the Interim Servicer. The Interim
Servicer shall make monthly distributions on each Remittance Date to the
Purchaser of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in
Section 2.17 and of any reserves reasonably required from time to time to
be maintained to satisfy anticipated liabilities for such
expenses).
Section
2.19 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 2.20, the Interim Servicer
shall furnish to the Purchaser on or before the 10th day of each month a
statement with respect to any REO Property covering the operation of such REO
Property for the previous month and the Interim Servicer’s efforts in connection
with the sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That statement shall
be
accompanied by such other information as the Purchaser shall reasonably
request.
Section
2.20 Liquidation
Reports.
Upon the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, the Interim
Servicer shall submit to the Purchaser a liquidation report with respect to
such
Mortgaged Property.
Section
2.21 Notification
of Adjustments.
With
respect to each ARM Mortgage Loan, the Interim Servicer shall adjust the
Mortgage Interest Rate on the related Interest Rate Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage
and
Mortgage Note. The Interim Servicer shall execute and deliver any and all
necessary notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate adjustments.
The
Interim Servicer shall promptly, upon written request therefor, deliver to
the
Purchaser such notifications and any additional applicable data regarding such
adjustments and the methods used to calculate and implement such adjustments.
Upon the discovery by the Interim Servicer or the receipt of notice from the
Purchaser that the Interim Servicer has failed to adjust a Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note, the Interim
Servicer shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused the Purchaser
thereby.
Section
2.22 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged Property, the
Interim Servicer shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code.
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ARTICLE
III
PAYMENTS
TO PURCHASER
Section
3.01 Remittances.
On each
Remittance Date the Interim Servicer shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or
withdrawals from the Custodial Account pursuant to Section 2.05), plus
(b) all amounts, if any, which the Interim Servicer is obligated to
distribute pursuant to Section 2.03.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Interim
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Interim Servicer on the date such late payment is made and shall
cover the period commencing with the day following such second Business Day
and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Interim Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any
Event of Default by the Interim Servicer.
Section
3.02 Statements
to Purchaser.
Not
later than the Remittance Date, the Interim Servicer shall furnish to the
Purchaser a Monthly Remittance Advice, with a trial balance report attached
thereto, in the form of Exhibit 1 annexed hereto in hard copy and
electronic medium
mutually acceptable to the parties as to the preceding remittance and the period
ending on the preceding Determination Date.
In
addition, not more than 60 days after the end of each calendar year, the Interim
Servicer shall furnish to each Person who was a Purchaser at any time during
such calendar year an annual statement in accordance with the requirements
of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
Such
obligation of the Interim Servicer shall be deemed to have been satisfied to
the
extent that substantially comparable information shall be provided by the
Interim Servicer pursuant to any requirements of the Internal Revenue Code
as
from time to time are in force.
The
Interim Servicer shall prepare and file any and all tax returns, information
statements or other filings required to be delivered to any governmental taxing
authority or to the Purchaser pursuant to any applicable law with respect to
the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Interim Servicer shall provide the Purchaser with such information concerning
the Mortgage Loans as is necessary for the Purchaser to prepare its federal
income tax return as the Purchaser may reasonably request from time to
time.
Section
3.03 Principal
and Interest Advances by Interim Servicer.
The
Interim Servicer shall have no obligation to advance any amounts constituting
delinquent principal and interest payments.
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ARTICLE
IV
GENERAL
SERVICING PROCEDURES
Section
4.01 Transfers
of Mortgaged Property.
The
Interim Servicer shall use its best efforts to enforce any “due-on-sale”
provision contained in any Mortgage or Mortgage Note and to deny assumption
by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Interim Servicer
shall, to the extent it has knowledge of such conveyance, exercise its rights
to
accelerate the maturity of such Mortgage Loan under the “due-on-sale” clause
applicable thereto, provided, however, that the Interim Servicer shall not
exercise such rights if prohibited by law from doing so or if the exercise
of
such rights would impair or threaten to impair any recovery under the related
PMI Policy or LPMI Policy, if any.
If
the
Interim Servicer reasonably believes it is unable under applicable law to
enforce such “due-on-sale” clause, the Interim Servicer shall enter into
(i) an assumption and modification agreement with the person to whom such
property has been conveyed, pursuant to which such person becomes liable under
the Mortgage Note and the original Mortgagor remains liable thereon or
(ii) in the event the Interim Servicer is unable under applicable law to
require that the original Mortgagor remain liable under the Mortgage Note and
the Interim Servicer has the prior consent of the primary mortgage guaranty
insurer, a substitution of liability agreement with the purchaser of the
Mortgaged Property pursuant to which the original Mortgagor is released from
liability and the purchaser of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. If an assumption fee
is
collected by the Interim Servicer for entering into an assumption agreement,
a
portion of such fee, up to an amount equal to one-half of one percent (0.5%)
of
the outstanding principal balance of the related Mortgage Loan, will be retained
by the Interim Servicer as additional servicing compensation, and any portion
thereof in excess of one-half of one percent (0.5%) shall be deposited in the
Custodial Account for the benefit of the Purchaser. In connection with any
such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of
the
Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Interim Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
which are used by Xxxxxx Xxx with respect to underwriting mortgage loans of
the
same type as the Mortgage Loans. If the credit of the proposed transferee does
not meet such underwriting criteria, the Interim Servicer diligently shall,
to
the extent permitted by the Mortgage or the Mortgage Note and by applicable
law,
accelerate the maturity of the Mortgage Loan.
Section
4.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon the
payment in full of any Mortgage Loan, or the receipt by the Interim Servicer
of
a notification that payment in full will be escrowed in a manner customary
for
such purposes, the Interim Servicer shall notify the Purchaser in the Monthly
Remittance Advice as provided in Section 3.02, and may request the release
of any Mortgage Loan Documents from the Purchaser in accordance with this
Section 4.02 hereof.
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If
the
Interim Servicer satisfies or releases a Mortgage without first having obtained
payment in full of the indebtedness secured by the Mortgage or should the
Interim Servicer otherwise prejudice any rights the Purchaser may have under
the
mortgage instruments, upon written demand of the Purchaser, the Interim Servicer
shall repurchase the related Mortgage Loan at the Repurchase Price by deposit
thereof in the Custodial Account within 2 Business Days of receipt of such
demand by the Purchaser. The Interim Servicer shall maintain the Fidelity Bond
and Errors and Omissions Insurance Policy as provided for in Section 2.13
insuring the Interim Servicer against any loss it may sustain with respect
to
any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section
4.03 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans during the period from the
related Closing Date up to but not including the related Transfer Date, the
Interim Servicer shall retain a Servicing Fee with respect to each Mortgage
Loan
in the amount of $7.00 per month, which amount shall be prorated for any portion
of a month during which the Mortgage Loan is serviced by the Interim Servicer
pursuant to this Agreement. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and the Servicing Fee is payable solely from, the interest
portion (including recoveries with respect to interest from Condemnation
Proceeds or Liquidation Proceeds, to the extent permitted by Section 2.02),
of such Monthly Payment collected by the Interim Servicer, or as otherwise
provided under Section 2.03.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 4.01, shall be retained by the Interim Servicer to the extent not
required to be deposited in the Custodial Account. The Interim Servicer shall
be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement thereof except
as specifically provided for herein.
Section
4.04 Annual
Statement as to Compliance.
The
Interim Servicer shall deliver to the Purchaser, on or before March 31 each
year
beginning March 31, 2002, and on the related Transfer Date an Officer’s
Certificate, stating that (i) a review of the activities of the Interim
Servicer during the preceding
calendar year and of performance under this Agreement has been made under such
officer’s supervision, and (ii) the Interim Servicer has complied fully
with the provisions of Article II and Article IV, and (iii) to the best of
such officer’s knowledge, based on such review, the Interim Servicer has
fulfilled
all its obligations under this Agreement throughout such year, or, if there
has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the action
being taken by the Interim Servicer to cure such default.
Section
4.05 Annual
Independent Public Accountants’ Servicing Report.
On or
before March 31st of each year beginning March 31, 2002, the Interim Servicer,
at its expense, shall cause a firm of independent public accountants which
is a
member of the American Institute of Certified
Public Accountants to furnish a statement to each Purchaser to the effect that
such firm has examined certain documents and records relating to the servicing
of the Mortgage Loans and this Agreement and that such firm is of the opinion
that the provisions of Article II and Article III have been complied with,
and
that, on the basis of such examination conducted substantially in compliance
with the Single Audit Program for Mortgage Bankers, nothing has come to their
attention which would indicate that such servicing has not been conducted in
compliance therewith, except for (i) such exceptions as such firm shall
believe to be immaterial, and (ii) such other exceptions as shall be set
forth in such statement.
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Section
4.06 Right
to Examine Interim Servicer Records.
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Interim Servicer, whether held by the
Interim Servicer or by another on its behalf, with respect to or concerning
this
Agreement or the Mortgage Loans, during business hours or at such other times
as
may be reasonable under applicable circumstances, upon reasonable advance
notice.
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ARTICLE
V
INTERIM
SERVICER TO COOPERATE
Section
5.01 Provision
of Information.
During
the term of this Agreement, the Interim Servicer shall furnish to the Purchaser
such periodic, special, or other reports or information, whether or not provided
for herein, as shall be necessary, reasonable, or appropriate with respect
to
the Purchaser or the purposes of this Agreement. All such reports or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Purchaser may give.
The
Interim Servicer shall execute and deliver all such instruments and take all
such action as the Purchaser may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this
Agreement.
Section
5.02 Financial
Statements; Servicing Facilities.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the Interim
Servicer for the most recently completed three fiscal years for which such
a
statement is available, as well as a Consolidated Statement of Condition at
the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Interim Servicer also shall make available any comparable
interim statements to the extent any such statements
have been prepared by or on behalf of the Interim Servicer (and are available
upon request to members or stockholders of the Interim Servicer or to the public
at large). If it has not already done so, the Interim Servicer shall furnish
promptly to the Purchaser copies of the statement specified above.
The
Interim Servicer shall make available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Interim
Servicer or the financial statements of the Interim Servicer, and to permit
any
prospective Purchaser to inspect the Interim Servicer’s servicing facilities for
the purpose of satisfying such prospective Purchaser that the Interim Servicer
have the ability to service the Mortgage Loans as provided in this
Agreement.
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ARTICLE
VI
TERMINATION
Section
6.01 Damages.
The
Purchaser shall have the right at any time to seek and recover from the Interim
Servicer any damages or losses suffered by it as a result of any failure by
the
Interim Servicer to observe or perform any duties, obligations, covenants or
agreements herein contained.
Section
6.02 Termination
Upon Transfer of Servicing.
(a) Termination
Procedures.
. This
Agreement shall terminate with respect to the Mortgage Loans or portion thereof
transferred
on the related Transfer Date as set forth in the related Purchase Price and
Terms Letter.
The
Purchaser may elect to terminate this Agreement and transfer the servicing
from
the Interim Servicer prior to the related Transfer Date with respect to all
or
any portion of the Mortgage Loans by providing written notice to the Interim
Servicer at least 10 Business Days prior to the date on which it intends to
transfer the servicing of its intent to transfer the servicing from the Interim
Servicer. On or before the date specified by the Purchaser in accordance with
this paragraph (a) for the transfer of servicing from the Interim Servicer,
the
Interim Servicer shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor’s possession all Mortgage Loan Documents necessary or
appropriate to effect the purposes of such notice of termination, including
but
not limited to the transfer and endorsement or assignment of the Mortgage Loans
and related documents, at the Interim Servicer’s sole expense. The Interim
Servicer shall cooperate with the Purchaser and such successor in effecting
the
termination of the Interim Servicer’s responsibilities and rights hereunder.
On
the
related Transfer Date, the Interim Servicer shall comply with all of the
provisions of Section 5 of the Purchase Agreement to effect a complete transfer
of the Servicing Rights. On the related Transfer Date for each Mortgage Loan,
this Agreement, except for Articles VI, VIII, IX and X which shall survive
the
related Transfer Date, shall terminate.
(b) Mortgage
Loans in Foreclosure.
The
servicing with respect to Mortgage Loans in foreclosure on or before the related
Transfer Date shall not be transferred from the Interim Servicer to the
Purchaser or the successor servicer, as the case may be, and such Mortgage
Loans
shall continue to be serviced by the Interim Servicer pursuant to the terms
of
this Agreement. However, if the Purchaser so elects, the Purchaser may waive
the
provisions of this paragraph (b) and accept transfer of servicing of such
Mortgage Loans and all amounts received by the Interim Servicer
thereunder.
(c) Servicing
Advances.
Notwithstanding the fact that the related Transfer Date has occurred, the
Interim Servicer shall not be reimbursed for any Servicing Advances with respect
to any Mortgage Loan until the Interim Servicer or the successor servicer
receives a Monthly Payment or Liquidation Proceeds with respect to such Mortgage
Loan. At such time, the Interim Servicer shall be entitled to be reimbursed
for
all unreimbursed Servicing Advances with respect to such Mortgage Loan on a
first priority basis (but subject to any successor servicer’s rights to
reimbursement with respect to Servicing Advances) from the Monthly Payment
or
Liquidation Proceeds received with respect to such Mortgage Loan. This
Section 6.03(c) shall survive the related Transfer Date.
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(d) Additional
Termination Provisions.
Notwithstanding and in addition to the foregoing, in the event that (i) a
Mortgage Loan becomes delinquent for a period of 120 days or more (a
“Delinquent
Mortgage Loan”)
or
(ii) a Mortgage Loan becomes an REO Property, the Purchaser may at its
election terminate this Agreement with respect to such Delinquent Mortgage
Loan
or REO Property, upon 15 days’ written notice to the Interim
Servicer.
Section
6.03 Pass
Through Transfer.
(a) The
Purchaser may convey the Mortgage Loans to one or more securitized trust
structures (“Pass-Through Transfers”). In each case temporarily retaining the
Interim Servicer as the servicer thereof. The date on which any Mortgage Loans
are included in a Pass-Through Transfer shall be a Reconstitution Date. On
any
Reconstitution Date, the Mortgage Loans transferred shall cease to be covered
by
the Interim Servicing Agreement.
(b) The
Interim Servicer shall cooperate with the Purchaser in connection with any
Pass-Through Transfer contemplated by the Purchaser pursuant to this Section
28.
In that connection, the Interim Servicer shall (a) execute any agreements
related to any Pass-Through Transfers (“Reconstitution Agreements”) within a
reasonable period of time after receipt of any Reconstitution Agreement which
time shall be sufficient for the Interim Servicer and Interim Servicer’s counsel
to review such Reconstitution Agreement, but such time shall not exceed ten
(10)
Business Days after such receipt, and (b) provide to the trustee or a third
party purchaser, as the case may be, subject to any Reconstitution Agreement
and/or the Purchaser: (i) any and all information and appropriate verification
of information which may be reasonably available to the Interim Servicer,
whether through letters of its auditors (the reasonable out-of-pocket cost
of
which will be borne by the Purchaser) and counsel or otherwise, as the Purchaser
shall reasonably request; (ii) to bring each of the Mortgage Loan
representations and warranties set forth in the Agreement current as of the
date
the Mortgage Loans are being transferred pursuant to a Pass-Through Transfer,
provided that, such Mortgage Loan representations and warranties shall be
revised, to the extent allowed or required by the rating agencies and the
certificate insurer and acceptable to the Purchaser, to reflect the actual
pool
of Mortgage Loans being securitized; notwithstanding the foregoing, Interim
Servicer shall, at the time of reconstitution, be entitled to state certain
exceptions to the Mortgage Loan representations and warranties necessary to
make
same true and correct as of the time of the Pass-Through Transfer and (iii)
such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Interim
Servicer as are reasonably believed necessary by the trustee, such third party
purchaser, any master servicer, any rating agency or the Purchaser, as the
case
may be, in connection with such transactions; provided, however, that these
items shall not be more onerous than such similar items set forth
herein.
(c) In
the
event the Purchaser has elected to have the Interim Servicer hold record title
to the Mortgages, prior to a Reconstitution Date the Interim Servicer or its
designee shall prepare an assignment of mortgage in blank from the Interim
Servicer, acceptable to the trustee or such third party, as the case may be,
for
each Mortgage Loan that is part of a Pass-Through Transfer and shall pay all
preparation and recording costs associated therewith. The Interim Servicer
shall
execute each assignment of mortgage, track such assignments of mortgage to
ensure they have been recorded and deliver them as required by the trustee
or
such third party, as the case may be, upon the Interim Servicer’s receipt
thereof, provided, that the Interim Servicer need not record an assignment
of
mortgage if, at the sole option of the Purchaser, the Interim Servicer delivers
an opinion of counsel in the applicable jurisdiction that it is not necessary
to
record the assignment of mortgage to protect the Purchaser’s interest.
Additionally, the Interim Servicer shall prepare and execute, at the direction
of the Purchaser, any Mortgage Note endorsements in connection with any and
all
Reconstitution Agreements.
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(d) The
Reconstitution Agreement will require the Interim Servicer to advance principal
and interest payments on each Mortgage Loan at the Mortgage Loan Interest Rate
less the Reconstituted Servicing Fee (defined below) on the remittance date
of
the Reconstitution Agreement. The Reconstitution Agreement will also require
in
connection with any prepayments, in addition to any prepayment penalties
received by the Interim Servicer on the prepaid Mortgage Loan, the Interim
Servicer shall contribute from its own funds to the extent that such
contributions do not exceed the Reconstituted Servicing Fee, payable to the
Interim Servicer for such prior month, any shortfall in the interest component
thereof, such that one month’s interest shall be deposited in the Custodial
Account, (as defined in the Interim Servicing Agreement), prior to the
remittance date of the Reconstitution Agreement. The Interim Servicer’s
obligation to remit payments of principal and interest shall continue through
the liquidation of the Mortgaged Property on the related Mortgage Loan, or
until
such time that the Interim Servicer deems that any future advances of principal
and interest would be otherwise non-recoverable. The Reconstituted Servicing
Fee
shall be .25% per annum times the outstanding principal balance of the Mortgage
Loans included in the respective Pass-Through Transfer.
(e) The
Interim Servicer shall do all things necessary and required by a servicer who
services Mortgage Loans under a Pass-Through Transfer which is a REMIC (defined
as a “real estate mortgage conduit” within the meaning Section 860D of the
Internal Revenue Code of 1986, as it may be amended from time to
time).
(f) All
Mortgage Loans not sold or transferred pursuant to a Pass-Through Transfer
and
any Mortgage Loans repurchased by the Purchaser, shall be subject to the Interim
Servicing Agreement and shall continue to be serviced in accordance with the
terms of the Interim Servicing Agreement and with respect thereto the Interim
Servicing Agreement shall remain in full force and effect.
ARTICLE
VII
BOOKS
AND RECORDS
Section
7.01 Possession
of Servicing Files Prior to the Transfer Date.
Prior to
the related Transfer Date, the contents of each Servicing File are and shall
be
held in trust by the Interim Servicer for the benefit of the Purchaser as the
owner thereof. The Interim Servicer shall maintain in the Servicing File a
copy
of the contents of each Mortgage File and the originals of the documents in
each
Mortgage File not delivered to the Purchaser. The possession of the Servicing
File by the Interim Servicer is at the will of the Purchaser for the sole
purpose of servicing
the related Mortgage Loan, pursuant to this Agreement, and such retention and
possession by the Interim Servicer is in its capacity as Servicer only and
at
the election of the Purchaser. The Interim Servicer shall release its custody
of
the contents of any Servicing File only in accordance with written instructions
from the Purchaser, unless such release is required as incidental to the Interim
Servicer’s servicing of the Mortgage Loans pursuant to this Agreement, or is in
connection with a repurchase of any Mortgage Loan pursuant to the terms of
the
Purchase Agreement.
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The
Interim Servicer shall be responsible for maintaining, and shall maintain,
a
complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Interim Servicer shall maintain in its possession, available
for
inspection by the Purchaser or its designee, and shall deliver to the Purchaser
or its designee upon demand, evidence of compliance with all federal, state
and
local laws, rules and regulations, and requirements of Xxxxxx Mae or Xxxxxxx
Mac, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval
by
Xxxxxx Mae and periodic inspection reports as required by
Section 2.14.
The
Interim Servicer shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, the Interim Servicer
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may
be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Interim Servicer shall be under no obligation
to
deal with any person with respect to this Agreement or the Mortgage Loans unless
the books and records show such person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell or transfer one
or
more of the Mortgage Loans. The Purchaser also shall advise the Interim Servicer
of the transfer. Upon receipt of notice of the transfer, the Interim Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
Section
8.01 Indemnification. The
Interim Servicer agrees to indemnify the Purchaser and hold it harmless against
any and all claims, losses, damages, penalties, fines, and forfeitures,
including, but not limited to reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Purchaser
may
sustain in any way related to the failure of Interim Servicer to (a) perform
its
duties and service the Mortgage Loans in strict compliance with the terms of
this Agreement and/or (b) comply with applicable law. The Interim Servicer
immediately shall notify the Purchaser if a claim is made by a third party
with
respect to this Agreement, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Interim Servicer shall follow any written instructions
received from the Purchaser in connection with such claim. The Purchaser
promptly shall reimburse the Interim Servicer for all amounts advanced by it
pursuant to the preceding sentence except when the claim is in any way related
to the Interim Servicer’s indemnification pursuant to Section 8 of the Purchase
Agreement, or the failure of the Interim Servicer to (a) service and administer
the Mortgage Loans in strict compliance with the terms of this Agreement and/or
(b) comply with applicable law.
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Section
8.02 Limitation
on Liability of Interim Servicer and Others.
Neither
the Interim Servicer nor any of the directors, officers, employees or agents
of
the Interim Servicer shall be under any liability to the Purchaser 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 this
provision shall not protect the Interim Servicer or any such person against
any
breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of
this
Agreement. The Interim Servicer and any director, officer, employee or agent
of
the Interim Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Interim Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to
its
duties to service the Mortgage loans in accordance with this Agreement
and
which
in its opinion may involve it in any expense or liability, provided, however,
that the Interim Servicer may, with the consent of the Purchaser, undertake
any
such action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such event, the
Interim Servicer shall be entitled to reimbursement from the Purchaser of the
reasonable legal expenses and costs of such action.
Section
8.03 Limitation
on Resignation and Assignment by Interim Servicer.
The
Purchaser has entered into this Agreement with the Interim Servicer and
subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Interim Servicer, and the representations as to the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Interim Servicer shall neither assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
hereof or sell or otherwise dispose of all or substantially all of its property
or assets without the prior written consent of the Purchaser, which consent
shall be granted or withheld in the sole discretion of the
Purchaser.
The
Interim Servicer shall not resign from the obligations and duties hereby imposed
on it except by mutual consent of the Interim Servicer and the Purchaser or
upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Interim Servicer.
Any
such determination permitting the resignation of the Interim Servicer shall
be
evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor shall
have assumed the Interim Servicer’s responsibilities and obligations hereunder
in the manner provided in Section 6.02.
-26-
Without
in any way limiting the generality of this Section 8.03, in the event that
the Interim Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, without the prior written consent of the Purchaser, then the
Purchaser shall have the right to terminate this Agreement upon notice given
as
set forth in Section 6.03, without any payment of any penalty or damages
and without any liability whatsoever to the Interim Servicer or any third
party.
Section
8.04 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Interim Servicer
but
subject to the limit set forth in Section 2.01 hereof, to assign, in whole
or in part, its interest under this Agreement with respect to some or all of
the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing
an Assignment and Assumption Agreement substantially in the form of Exhibit
H to
the Purchase Agreement. Upon such assignment of rights and assumption of
obligations, the assignee
or designee shall accede to the rights and obligations hereunder of the
Purchaser with respect to such Mortgage Loans and the Purchaser as assignor
shall be released from all obligations hereunder with respect to such Mortgage
Loans from and after the date of such assignment and assumption. All references
to the Purchaser in this Agreement shall be deemed to include its assignee
or
designee.
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
The
Purchaser warrants and represents to, and covenants and agrees with, the Interim
Servicer as follows:
Section
9.01 Authority
and Capacity.
The
execution, delivery and performance by the Purchaser of this Agreement has
been
and will remain duly and validly authorized by all necessary corporate action.
This Agreement constitutes and will continue to constitute a legal, valid and
enforceable obligation of the Purchaser.
Section
9.02 Assistance.
To the
extent possible, the Purchaser shall cooperate with and assist the Interim
Servicer as requested by the Interim Servicer, in carrying out Interim
Servicer’s covenants, agreements duties and responsibilities under the Purchase
Agreement and in connection therewith shall execute and deliver all such papers,
documents and instruments as may be necessary and appropriate in furtherance
thereof.
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES OF INTERIM SERVICER
The
Interim Servicer warrants and represents to, and covenants and agrees with,
the
Purchaser as follows:
-27-
Section
10.01 Due
Organization and Authority.
The
Interim Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the state of California and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
to
conduct business of the type conducted by the Interim Servicer, and in any
event
the Interim Servicer is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of the related Mortgage Loan
in
accordance with the terms of this Agreement; the Interim Servicer has the full
corporate power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of
this
Agreement (including all instruments or transfer to be delivered pursuant to
this Agreement) by the Interim Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Interim Servicer;
and all requisite corporate action
has been taken by the Interim Servicer to make this Agreement valid and binding
upon the Interim Servicer in accordance with its terms;
Section
10.02 Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Interim Servicer;
Section
10.03 No
Conflicts.
Neither
the execution and delivery of this Agreement, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Interim Servicer’s charter or by-laws or any legal restriction or any agreement
or instrument to which the
Interim Servicer is now a party or by which it is bound, or constitute a default
or result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the
Interim Servicer or its property is subject, or impair the ability of the
Purchaser to realize on the Mortgage Loans, or impair the value of the Mortgage
Loans;
Section
10.04 Ability
to Service.
The
Interim Servicer is an approved Interim Servicer/servicer of conventional
residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing of
mortgage loans of the same type as the Mortgage Loans. The Interim Servicer
is
in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx
Mae or Xxxxxxx Mac, and no event has occurred, including but not limited to
a
change in insurance coverage, which would make the Interim Servicer unable
to
comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which would
require notification to either Xxxxxx Mae or Xxxxxxx Mac;
Section
10.05 Ability
to Perform.
The
Interim Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement;
Section
10.06 No
Litigation Pending.
There is
no action, suit, proceeding or investigation pending or threatened against
the
Interim Servicer which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Interim Servicer, or in any material
impairment of the right or ability of the Interim Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Interim Servicer, or which would draw into question the validity
of
this Agreement or the Mortgage Loans or of any action taken or to be taken
in
connection with the obligations of the Interim Servicer contemplated herein,
or
which would be likely to impair materially the ability of the Interim Servicer
to perform under the terms of this Agreement;
-28-
Section
10.07 No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Interim
Servicer of or compliance by the Interim Servicer with this Agreement or the
Servicing of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has
been obtained prior to the related Closing Date;
Section
10.08 No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection
with the transactions contemplated hereby contains any untrue statement of
fact
or omits to state a fact necessary to make the statements contained therein
not
misleading.
ARTICLE
XI
DEFAULT
Section
11.01 Events
of Default.
The
following shall constitute an Event of Default under this Agreement on the
part
of the Interim Servicer:
(a) any
failure by the Interim Servicer to remit to the Purchaser any payment required
to be made under the terms of this Agreement which continues unremedied for
a
period of five days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Interim Servicer
by the Purchaser; or
(b) the
failure by the Interim Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Interim
Servicer set forth in this Agreement which continues unremedied for a period
of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Interim Servicer by the
Purchaser; or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Interim Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days;
or
(d) the
Interim Servicer shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Interim Servicer or
of
or relating to all or substantially all of its property; or
(e) the
Interim Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors, or voluntarily suspend payment of its obligations; or
-29-
(f) the
Interim Servicer ceases to meet the qualifications of a Xxxxxx Mae servicer;
or
(g) the
Interim Servicer fails to maintain a minimum net worth of $25,000,000;
or
(h) the
Interim Servicer attempts to assign its right to servicing compensation
hereunder or the Interim Servicer attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion
thereof.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law or equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Interim Servicer, may terminate all the rights
and
obligations of the Interim Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof.
Upon
receipt by the Interim Servicer of such written notice, all authority and power
of the Interim Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 6.03.
Section
11.02 Waiver
of Defaults.
By a
written notice, the Purchaser may waive any default by the Interim Servicer
in
the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or mailing thereof, as the
case
may be, sent by registered or certified mail, return receipt
requested:
(a) If
to
Purchaser to:
Xxxxxx
Brothers Bank, FSB
3
World
Financial Xxxxxx
0xx
Xxxxx
Xxx
Xxxx, Xxx
Xxxx 00000-0000
Attention:
Contract Finance
-30-
With
copies
to:
Cadwalader,
Xxxxxxxxxx & Xxxx
000
Xxxxxx
Xxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxxx
Xxxxx
And
electronically, to xxxxxxx@xxxxxx.xxx
(b) If
to
Interim Servicer to:
Greenpoint
Mortgage Funding Inc.
000
Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxx Xxxxx
Section
12.02 Waivers.
Either
the Interim Servicer or Purchaser may upon consent of all parties, by written
notice to the others:
(a) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the others hereunder; and
(b) Waive
or
modify performance of any of the obligations of the others
hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other subsequent
breach.
Section
12.03 Entire
Agreement; Amendment.
This
Agreement and the Purchase Agreement constitute the entire agreement between
the
parties with respect to servicing of the Mortgages during the Interim Period.
This Agreement may be amended and any provision hereof waived, but, only in
writing signed by the party against whom such enforcement is
sought.
Section
12.04 Execution;
Binding Effect.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement. Subject to
Section 8.03, this Agreement shall inure to the benefit of and be binding
upon the Interim Servicer and the Purchaser and their respective successors
and
assigns.
Section
12.05 Headings.
Headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
Section
12.06 Applicable
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York.
-31-
Section
12.07 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties. The duties and responsibilities of the Interim
Servicer shall be rendered by them as independent contractors and not as an
agent of Purchaser. The Interim Servicer shall have full control of all of
its
acts, doings, proceedings, relating to or requisite in connection with the
discharge of its duties and responsibilities under this Agreement.
Section
12.08 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from
the
remaining covenants, agreements, provisions or terms of this Agreement and
shall
in no way affect the validity or enforceability of the other provisions of
this
Agreement.
Section
12.09 Recordation
of Assignments of Mortgage.
To the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Interim Servicer’s expense in the event recordation is either necessary under
applicable law or requested by the Purchaser at its sole option.
Section
12.10 Appointment
and Designation of Master Servicer.
The
Purchaser hereby appoints and designates Aurora Loan Services, Inc. as its
master servicer (the “Master
Servicer”)
for
the Mortgage Loans subject to this Agreement. The Interim Servicer is hereby
authorized and instructed to take any and all instructions with respect to
servicing the Mortgage Loans hereunder as if the Master Servicer were the
Purchaser hereunder. The authorization and instruction set forth herein shall
remain in effect until such time as the Interim Servicer shall receive written
instruction from the Purchaser that such authorization and instruction is
terminated.
-32-
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal as of
the
date and year first above written.
XXXXXX
BROTHERS BANK, FSB
(the
Purchaser)
By:_________________________________________
Name:
Title:
GREENPOINT
MORTGAGE FUNDING INC.
(the
Interim
Servicer)
By:_________________________________________
Name:
Title:
EXHIBIT
1
FORM
OF MONTHLY REMITTANCE ADVICE
[Intentionally
Omitted]
1-1
EXHIBIT
2
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
_______
__, 2001
_____________________________________________
hereby certifies that it has established the account described below as a
Custodial Account pursuant to Section 2.04 of the Flow Interim Servicing
Agreement, dated as of December 12, 2001, Fixed and Adjustable Rate Mortgage
Loans, Group 2001-_____.
Title
of
Account: “Greenpoint
Mortgage Funding Inc. in trust for the registered Purchaser, Group
2001-____.”
Account
Number:_______________________
Address
of office or branch
of
the
Interim Servicer at
which
Account is maintained:_______________
GREENPOINT
MORTGAGE FUNDING INC.
Interim
Servicer
By:___________________________________
Name:
Title:
2-1
EXHIBIT
3
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
_______
__, 2001
|
To:
|
|
|
(the
“Depository”)
|
As
Interim Servicer under the Flow Interim Servicing Agreement, dated as of
December 12, 2001, Fixed and Adjustable Rate Mortgage Loans, Group 2001-1 (the
“Agreement”), we hereby authorize and request you to establish an account, as a
Custodial Account pursuant to Section 2.04 of the Agreement, to be
designated as “Greenpoint Mortgage Funding Inc. in trust for the Fixed and
Adjustable Rate Mortgage Loans - Group 2001-____.” All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Interim
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
|
GREENPOINT
MORTGAGE FUNDING INC.
|
||
| Interim
Servicer
|
||
| |
|
|
| By: | ||
|
Name:
Title:
Date:
|
||
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
3-1
| |
|
Depository |
| Date: | By: | |
|
Name:
Title:
Date:
|
||
| Title | ||
3-2
EXHIBIT
4
FORM
OF ESCROW ACCOUNT CERTIFICTION
_________
___, 200_
Greenpoint
Mortgage Funding Inc. hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 2.06 of the Flow
Interim Servicing Agreement, dated as of December 12, 2001, Fixed and Adjustable
Rate Mortgage Loans, Group 2001-____.
Title
of
Account: “Greenpoint
Mortgage Funding Inc. in trust for the Purchaser of the Fixed and Adjustable
Rate Mortgage Loans, Group ___, and various Mortgagors.”
Account
Number:________________________
Address
of office or branch
of
the
Interim Servicer at
which
Account is maintained:_______________
GREENPOINT
MORTGAGE FUNDING INC.
Interim
Servicer
By:____________________________________
Name:
Title:
Date:
4-1
EXHIBIT
5
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
_______
__, 200_
To:
(the
“Depository”)
As
Interim Servicer under the Flow Interim Servicing Agreement, dated as of
December 12, 2001, Fixed and Adjustable Rate Mortgage Loans, Group 2001-____
(the “Agreement”), we hereby authorize and request you to establish an account,
as an Escrow Account pursuant to Section 2.06 of the Agreement, to be
designated as “Greenpoint Mortgage Funding Inc., in trust for the Purchasers of
Fixed and Adjustable Rate Mortgage Loans - Group 2001-____.” All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Interim
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
GREENPOINT
MORTGAGE FUNDING INC.
Interim
Servicer
By:____________________________________
Name:
Title:
Date:
5-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
| |
|
Depository |
| Date: | By: | |
|
Name:
Title:
Date:
|
||
5-2
EXHIBIT
6
ACKNOWLEDGMENT
AGREEMENT
On
this
____ day of ____________, 200_, Xxxxxx Brothers Bank, FSB, (the “Purchaser”)
as the
Purchaser under that certain Flow Interim Servicing Agreement dated as of
December 12, 2001, (the “Agreement”),
does
hereby contract with Greenpoint Mortgage Funding Inc. (the “Seller”)
as
Seller under the Agreement, for the servicing responsibilities related to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto. The Seller
hereby accepts the servicing responsibilities transferred hereby and on the
date
hereof assumes all servicing responsibilities related to the Mortgage Loans
identified on the attached Mortgage Loan Schedule all in accordance with the
Agreement. The contents of each Servicing File required to be delivered to
service the Mortgage Loans pursuant to the Agreement have been or shall be
delivered to the Seller by the Purchaser in accordance with the terms of the
Agreement.
With
respect to the Mortgage Loans made subject to the Agreement hereby, the Closing
Date shall be ___________________ and the Transfer Date shall be
_______________.
All
other
terms and conditions of this transaction shall be governed by the
Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
6-1
This
Acknowledgment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
PURCHASER:
|
|
XXXXXX
BROTHERS BANK, FSB
|
|
By:
|
|
Name:
|
|
Title:
|
|
SELLER:
|
|
GREENPOINT
MORTGAGE FUNDING INC.
|
|
By:
|
|
Name:
|
|
Title:
|
6-2
AMENDMENT
NO. 1
TO
THE
FLOW INTERIM SERVICING AGREEMENT
This
is
Amendment No. 1 (the “Amendment
No. 1”),
dated
as of March 14, 2003 (the “Amendment
Date”),
by
and between Xxxxxx Brothers Bank, FSB (the “Purchaser”), and
Greenpoint Mortgage Funding, Inc. (the “Seller”)
to
that certain Flow Interim Servicing Agreement dated as of December 12, 2001
by
and between the Seller and the Purchaser (the “Existing
Servicing Agreement”,
as
amended by this Amendment 1, the “Servicing
Agreement”).
W
I T N E
S S E T H
WHEREAS,
the Seller and the Purchaser have agreed, subject to the terms and conditions
of
this Amendment No. 1 that the Existing Servicing Agreement be amended to reflect
certain agreed upon revisions to the terms of the Existing Servicing
Agreement.
Accordingly,
the Seller and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Existing Servicing
Agreement is hereby amended as follows:
| (1) |
Article
II of the Existing Servicing Agreement is hereby amended by adding
the
following language at the end
thereof:
|
Section
2.23 Credit
Reporting
For each
Mortgage Loan, the Interim Servicer shall accurately and fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on its borrower credit files to each of the
following credit repositories: Equifax Credit Information Services, Inc.,
TransUnion, LLC and Experian Information Solution, Inc. on a monthly
basis.
| (2) |
Effective
Date.
This Amendment shall become effective on the date (the “Amendment
Effective Date”)
on which the following conditions precedent shall have been
satisfied:
|
|
(a)
|
On
the Amendment Effective Date, the Purchaser shall have received the
following, each of which shall be satisfactory to the
Purchaser:
|
|
(i)
|
this
Amendment, executed and delivered by a duly authorized officer of
the
Seller and the Purchaser;
|
|
(ii)
|
such
other documents as the Purchaser or counsel to the Purchaser may
reasonably request.
|
|
(b)
|
On
the Amendment Effective Date, (i) the Seller shall be in compliance
with
all the representations and warranties set forth in Article X of
the
Servicing Agreement, as amended by this Amendment No. 1, on its part
to be
observed or performed, (ii) no default shall have occurred and be
continuing on such date.
|
| (3) |
Except
as expressly amended and modified by this Amendment, the Existing
Servicing Agreement shall continue to be, and shall remain, in full
force
and effect in accordance with its
terms.
|
| (4) |
This
Amendment No. 1 shall be construed in accordance with the laws of
the
State of New York, and the obligations, rights and remedies of the
parties
hereunder shall be determined in accordance with such
laws.
|
| (5) |
This
Amendment No. 1 may be executed in one or more counterparts and by
different parties hereto on separate counterparts, each of which,
when so
executed, shall constitute one and the same
agreement.
|
| (6) |
This
Amendment No. 1 shall inure to the benefit of and be binding upon
the
Purchaser and the Seller under the Existing Servicing Agreement,
and their
respective successors and permitted
assigns.
|
[Signatures
Commence on Following Page]
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first
above written.
XXXXXX
BROTHERS BANK, FSB
Purchaser
By:____________________________
Name:__________________________
Title:___________________________
GREENPOINT
MORTGAGE FUNDING, INC.
Seller
By:____________________________
Name:__________________________
Title:___________________________
AMENDMENT
REG AB
TO
THE
FLOW INTERIM SERVICING AGREEMENT
This
is
Amendment Reg AB (“Amendment
Reg AB”),
dated
as of November 23, 2005, by and between Xxxxxx Brothers Bank, FSB (the
“Purchaser”), and
Greenpoint Mortgage Funding Inc. (the “Seller”)
to
that certain Flow Interim Servicing Agreement dated as of December 12, 2001,
and
amended as of March 14, 2003, by and between the Seller and the Purchaser (as
amended, modified or supplemented, the “Existing
Agreement”).
W
I T N E
S S E T H
WHEREAS,
the Seller and the Purchaser have agreed, subject to the terms and conditions
of
this Amendment Reg AB that the Existing Agreement be amended to reflect agreed
upon revisions to the terms of the Existing Agreement.
Accordingly,
the Seller and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Existing Agreement
is
hereby amended as follows:
1. Capitalized
terms used herein but not otherwise defined shall have the meanings set forth
in
the Existing Agreement. The Existing Agreement is hereby amended by adding
the
following definitions in their proper alphabetical order:
Commission:
The
United States Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act.
The
Securities Exchange Act of 1934, as amended.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
An
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties in connection with a Reconstitution with respect to any
or
all of the Mortgage Loans serviced under the Agreement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
Securities
Act:
The
Securities Act of 1933, as amended.
2
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller
Information:
As
defined in Section 2(g)(i)(A)(1).
Servicer:
As
defined in Section 2(c)(ii).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
2. The
Purchaser and the Seller agree that the Existing Agreement is hereby amended
by
adding the following provisions:
(a)
Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that the purpose of Article
2 of
this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. Neither the Purchaser nor any Depositor shall exercise its right
to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder. The Seller acknowledges that interpretations of the requirements
of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to
comply with requests made by the Purchaser or any Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to
be necessary in order to effect such compliance.
3
(b) Additional
Representations and Warranties of the Seller.
(i) The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Section 2(c) that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i)
the
Seller is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Seller; (ii) the
Seller has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Seller as servicer
has been
disclosed or reported by the Seller; (iv) no material
changes to the Seller’s policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans
have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller’s financial
condition that could have a material adverse effect on the performance by
the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(vi)
there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller or any Subservicer;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Seller or any Subservicer with respect to any Securitization Transaction and
any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(ii) If
so
requested by the Purchaser or any Depositor on any date following the
date
on which information is first provided to the Purchaser or any Depositor under
Section 2(c),
the
Seller shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (i) of this Section or, if any such representation and warranty is
not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
(c) Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (1) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Subservicer
to
provide), in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, the information and materials specified in
paragraphs (i), (ii) and (v) of this Section 2(c), and (2) as promptly as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified
in
paragraph (iii) of this Section.
4
(i) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller and each Subservicer, as applicable, as is
requested for the purpose of compliance with Items 1103(a)(1), 1117 and 1119
of
Regulation AB. Such information shall include, at a minimum:
(A) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller and each Subservicer; and
(B) a
description of any affiliation or relationship between the Seller, each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Seller by the Purchaser or any Depositor
in
writing in advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(ii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108 of Regulation AB. Such information shall include, at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
5
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
6
(iii) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Subservicer
to)
(a) notify the Purchaser and any Depositor in writing of (1) any material
litigation or governmental proceedings pending against the Seller or any
Subservicer and (2) any affiliations or relationships that develop following
the
closing date of a Securitization Transaction between the Seller or any
Subservicer and any of the parties specified in clause (B) of paragraph (i)
of
this Section 2(c) (and any other parties identified in writing by the requesting
party) with respect to such Securitization Transaction, and (b) provide to
the
Purchaser and any Depositor a description of such proceedings, affiliations
or
relationships.
(iv) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(v) In
addition to such information as the Seller, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such information reasonably available
to the Seller regarding the performance or servicing of the Mortgage Loans
as is
reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB.
(d) Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Seller, to the effect that (i) a review of the Seller’s activities during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (ii) to
the best of such officers’ knowledge, based on such review, the Seller has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
(e) Report
on Assessment of Compliance and Attestation.
7
(i) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(A) deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Seller’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Seller, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Agreement;
(B) deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Seller and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act;
(C) cause
each Subservicer and each Subcontractor determined by the Seller pursuant to
Section 2(f)(ii) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB (each, a “Participating Entity”), to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants’ attestation as and when provided in paragraphs (i) and (ii) of this
Section 2(e); and
(D) deliver
to the Purchaser, any Depositor and any other Person that will be responsible
for signing the certification (a “Sarbanes Certification”) required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of
the
Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect
to
a Securitization Transaction a certification in the form attached hereto as
Exhibit A.
The
Seller acknowledges that the parties identified in clause (i)(D) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Section
2(e)(i)(A) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 2(e)(i)(C) need not address any elements of the Servicing Criteria
other
than those specified by the Seller pursuant to Section 2(f).
(f) Use
of
Subservicers and Subcontractors.
8
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (i) of this Section. The Seller shall not hire or otherwise utilize
the services of any Subcontractor, and shall not permit any Subservicer to
hire
or otherwise utilize the services of any Subcontractor, to fulfill any of the
obligations of the Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (ii)
of
this Section.
(i) It
shall
not be necessary for the Seller to seek the consent of the Purchaser or any
Depositor to the utilization of any Subservicer. The Seller shall cause any
Subservicer used by the Seller (or by any Subservicer) for the benefit of the
Purchaser and any Depositor to comply with the provisions of this Section and
with Sections 2(b), 2(c)(ii), 2(c)(iv), 2(d), 2(e) and 2(g) of this Agreement
to
the same extent as if such Subservicer were the Seller, and to provide the
information required with respect to such Subservicer under Section 2(c)(iii)
of
this Agreement. The Seller shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
2(d), any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 2(e) and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 2(e) as and when required to be
delivered.
(ii) It
shall
not be necessary for the Seller to seek the consent of the Purchaser or any
Depositor to the utilization of any Subcontractor. The Seller shall promptly
upon request provide to the Purchaser and any Depositor (or any designee of
the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of the
role
and function of each Subcontractor utilized by the Seller or any Subservicer,
specifying (A) the identity of each such Subcontractor, (B) which (if any)
of
such Subcontractors are Participating Entities, and (C) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each Subcontractor identified pursuant to clause (B) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 2(e) and 2(g) of this Agreement to the
same extent as if such Subcontractor were the Seller. The Seller shall be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 2(e), in each
case
as and when required to be delivered.
(g) Indemnification;
Remedies.
9
(i) The
Seller
shall
indemnify the Purchaser, each affiliate of the Purchaser, and each of the
following parties participating
in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial Purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Depositor, and shall hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(A)(1) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other
material
provided
under
this Amendment Reg AB
by or on
behalf of the Seller,
or provided under this Amendment Reg AB by or on behalf of any Subservicer
or
Subcontractor (collectively, the “Seller Information”),
or (2)
the omission or alleged omission to state in the Seller Information a material
fact required to be stated in the Seller Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
by way of clarification,
that
clause (2) of this paragraph shall be construed solely by reference to the
Seller Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
(B) any
failure by the Seller, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Amendment Reg AB, including any failure
by the Seller to identify pursuant to Section 2(f)(ii) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB; or
(C) any
breach by the Seller of a representation or warranty set forth in Section
2(b)(i) or in a writing furnished pursuant to Section 2(b)(ii) and made as
of a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Seller of a representation or warranty in a writing furnished pursuant to
Section 2(b)(ii) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (i)(B) of this Section,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Seller, any
Subservicer or any Subcontractor.
10
(ii) The
Purchaser and each Person who controls the Purchaser shall indemnify the
Company, each affiliate of the Company, each Person who controls any of such
parties or the Company (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act) and the respective present and former
directors, officers, employees and agents of each of the foregoing and of the
Company, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(A) (1) any
untrue statement of a material fact contained or alleged to be contained in
any
offering materials related to a Securitization Transaction, including without
limitation the registration statement, prospectus, prospectus supplement, any
private placement memorandum, any offering circular, any computational
materials, and any amendments or supplements to the foregoing (collectively,
the
“Securitization Materials”) or (2) the omission or alleged omission to state in
the Securitization Materials a material fact required to be stated in the
Securitization Materials or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
but only to the extent that such untrue statement or alleged untrue statement
or
omission or alleged omission is other than a statement or omission arising
out
of, resulting from, or based upon the Company Information.
(iii) (A) Any
failure by the Seller, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Amendment Reg AB, or any breach by
the
Seller of a representation or warranty set forth in Section 2(b)(i) or in a
writing furnished pursuant to Section 2(b)(ii) and made as of a date prior
to
the closing date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by the Seller
of a
representation or warranty in a writing furnished pursuant to Section 2(b)(ii)
to the extent made as of a date subsequent to such closing date, shall, except
as provided in clause (B) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Seller under this Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
(B) Any
failure by the Seller, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 2(d) or 2(e), including any failure by the Seller
to
identify pursuant to Section 2(f)(ii) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Seller under
this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Seller as servicer under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Seller;
provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
11
(C) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
3. The
Seller acknowledges that a Subservicer or Subcontractor that performs services
with respect to mortgage loans involved in a Securitization Transaction in
addition to the Mortgage Loans may be determined by a Depositor to be a
Participating Entity on the basis of the aggregate balance of such mortgage
loans, without regard to whether such Subservicer or Subcontractor would be
a
Participating Entity with respect to the Mortgage Loans viewed in isolation.
The
Seller shall (A) respond as promptly as practicable to any good faith request
by
the Purchaser or any Depositor for information regarding each Subservicer and
each Subcontractor and (B) cause each Subservicer and each Subcontractor with
respect to which the Purchaser or any Depositor requests delivery of an
assessment of compliance and accountants’ attestation to deliver such within the
time required under Section 2(e).
4. Notwithstanding
any other provision of this Amendment Reg AB, (i) the Seller shall seek the
consent of the Purchaser for the utilization of all third party service
providers, including Subservicers and Subcontractors, when required by and
in
accordance with the terms of the Existing Agreement and (ii) references to
the
Purchaser shall be deemed to include any assignees or designees of the
Purchaser, such as any Depositor, a master servicer or a trustee.
5. The
Existing Agreement is hereby amended by adding the Exhibits attached hereto
as
Exhibit A and Exhibit B to the end thereto. References in this Amendment Reg
AB
to “this Agreement” or words of similar import (including indirect references to
the Agreement) shall be deemed to be references to the Existing Agreement as
amended by this Amendment Reg AB. Except as expressly amended and modified
by
this Agreement Reg AB, the Agreement shall continue to be, and shall remain,
in
full force and effect in accordance with its terms. In the event of a conflict
between this Amendment Reg AB and any other document or agreement, including
without limitation the Existing Agreement, this Amendment Reg AB shall
control.
6. This
Amendment Reg AB shall be governed by and construed in accordance with the
laws
of the State of New York without reference to its conflict of law provisions
(other than Section 5-1401 of the General Obligations Law), and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
12
7. This
Amendment Reg AB may be executed in one or more counterparts and by different
parties hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement. This Amendment Reg AB will become
effective as of the date first mentioned above. This
Amendment Reg AB shall bind and inure to the benefit of and be enforceable
by
the Seller and the Purchaser and the respective permitted successors and assigns
of the Seller and the successors and assigns of the Purchaser. This Amendment
Reg AB shall not be assigned, pledged or hypothecated by the Seller to a third
party without the prior written consent of the Purchaser, which consent may
be
withheld by the Purchaser in its sole discretion. The Existing Agreement as
amended by this Amendment Reg AB may be assigned, pledged or hypothecated by
the
Purchaser in whole or in part, and with respect to one or more of the Mortgage
Loans, without the consent of the Seller. There shall be no limitation on the
number of assignments or transfers allowable by the Purchaser with respect
to
the Mortgage Loans and this Amendment Reg AB and the Existing
Agreement.
[Signatures
Commence on Following Page]
13
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first
above written.
XXXXXX
BROTHERS BANK, FSB
Purchaser
By:____________________________
Name:__________________________
Title:___________________________
GREENPOINT
MORTGAGE FUNDING INC.
Seller
By:____________________________
Name:__________________________
Title:___________________________
Signature
page to Amendment Reg AB
EXHIBIT
A
FORM
OF
ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as of [ ],
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of Greenpoint
Mortgage Funding Inc., certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Seller provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Seller’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Seller during
200[ ] that were delivered by the Seller to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement (collectively,
the “Seller Servicing Information”);
(2) Based
on
my knowledge, the Seller Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Seller Servicing Information;
(3) Based
on
my knowledge, all of the Seller Servicing Information required to be provided
by
the Seller under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Seller as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Seller has fulfilled its obligations under the Agreement; and
(5) The
Compliance Statement required to be delivered by the Seller pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Seller and by each Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed to
the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By:
________________________________
Name:
Title:
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Seller] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
| Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
| Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF
COMPANY] [NAME OF SUBSERVICER]
Date: _________________________
By:
________________________________
Name:
Title:
