Exhibit 99.2
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XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
OCWEN FEDERAL BANK, FSB,
as Servicer
RENAISSANCE HOME EQUITY LOAN TRUST 2005-1,
as Issuer
and
HSBC BANK USA, NATIONAL ASSOCIATION,
as Indenture Trustee
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SERVICING AGREEMENT
Dated as of March 31, 2005
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Mortgage Loans
Renaissance Home Equity Loan Trust 2005-1
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................5
Section 1.02. Other Definitional Provisions...................................5
Section 1.03. Interest Calculations...........................................5
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations, Warranties and Covenants Regarding
the Servicer and the Master Servicer............................6
Section 2.02. Existence.......................................................9
Section 2.03. Enforcement of Representations and Warranties...................9
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Servicer...................................................10
Section 3.02. Collection of Certain Mortgage Loan Payments...................12
Section 3.03. Withdrawals from the Collection Account........................14
Section 3.04. Maintenance of Hazard Insurance;
Property Protection Expenses...................................15
Section 3.05. Maintenance of Mortgage Impairment Insurance Policy............16
Section 3.06. Management and Realization Upon Defaulted Mortgage Loans.......16
Section 3.07. Indenture Trustee to Cooperate.................................18
Section 3.08. Servicing Compensation; Payment of
Certain Expenses by Servicer...................................18
Section 3.09. Annual Statement as to Compliance..............................19
Section 3.10. Annual Servicing Review........................................19
Section 3.11. Access to Certain Documentation and
Information Regarding the Mortgage Loans.......................19
Section 3.12. Maintenance of Certain Servicing Insurance Policies............20
Section 3.13. Reports to the Securities and Exchange Commission..............20
Section 3.14. Compensating Interest..........................................23
Section 3.15. Advances by the Servicer.......................................23
Section 3.16. Optional Purchase of Defaulted Mortgage Loans..................24
Section 3.17. Superior Liens.................................................25
Section 3.18. Assumption Agreements..........................................25
Section 3.19. Payment of Taxes, Insurance and Other Charges..................26
Section 3.20. Advance Facility...............................................26
Section 3.21. Covenants of the Servicer Regarding Prepayment Charges.........29
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Section 3.22. Non-Solicitation...............................................30
Section 3.23. Reports to Securities Administrator............................30
Section 3.24. Reports of Foreclosures and Abandonments of Mortgaged
Properties, Returns Relating to Mortgage Interest
Received from Individuals and Returns Relating to
Cancellation of Indebtedness...................................30
ARTICLE IV
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE
MASTER SERVICER
Section 4.01. Master Servicer................................................33
Section 4.02. Reserved.......................................................33
Section 4.03. Monitoring of Servicer.........................................33
Section 4.04. Fidelity Bond..................................................34
Section 4.05. Power to Act; Procedures.......................................35
Section 4.06. Due-on-Sale Clauses; Assumption Agreements.....................35
Section 4.07. Documents, Records and Funds in Possession
of Master Servicer To Be Held for Trustee......................35
Section 4.08. Possession of Certain Insurance Policies and Documents.........36
Section 4.09. Compensation for the Master Servicer...........................36
Section 4.10. Annual Officer's Certificate as to Compliance..................37
Section 4.11. Annual Independent Accountant's Servicing Report...............37
Section 4.12. Obligation of the Master Servicer in Respect
of Prepayment Interest Shortfalls..............................38
Section 4.13. Monthly Advances by the Master Servicer........................38
Section 4.14. Merger or Consolidation........................................38
Section 4.15. Resignation of Master Servicer.................................38
Section 4.16. Assignment or Delegation of Duties by the Master Servicer......39
ARTICLE V
THE MASTER SERVICER AND THE SERVICER
Section 5.01. Liability of the Master Servicer and the Servicer..............40
Section 5.02. Merger or Consolidation of, or Assumption
of the Obligations of the Servicer.............................40
Section 5.03. Limitation on Liability of the Servicer,
the Master Servicer and Others.................................40
Section 5.04. Servicer Not to Resign; Pledge of Servicing Rights.............41
Section 5.05. Delegation of Duties...........................................42
Section 5.06. Indemnification of the Trust by the
Servicer and the Master Servicer...............................42
ARTICLE VI
DEFAULT
Section 6.01. Servicer Events of Default.....................................43
Section 6.02. Appointment of Successor Servicer..............................46
Section 6.03. Master Servicer Events of Default..............................48
Section 6.04. Appointment of Successor Master Servicer.......................51
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Section 6.05. Waiver of Defaults.............................................52
Section 6.06. Notification to Noteholders....................................53
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment......................................................54
Section 7.02. GOVERNING LAW..................................................55
Section 7.03. Notices........................................................55
Section 7.04. Assignment.....................................................56
Section 7.05. Severability of Provisions.....................................56
Section 7.06. Third-Party Beneficiaries......................................56
Section 7.07. Counterparts...................................................57
Section 7.08. Effect of Headings and Table of Contents.......................57
Section 7.09. Termination....................................................57
Section 7.10. No Petition....................................................57
Section 7.11. No Recourse....................................................57
Section 7.12. Indenture Trustee Rights.......................................57
Section 7.13. Waiver of Jury Trial...........................................57
Section 7.14. No Recourse to Owner Trustee...................................57
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Form of Request for Release of Documents
Exhibit C-1 Form of Certification to Be Provided to the Master Servicer by
the Securities Administrator
Exhibit C-2 Form of Certification to Be Provided to the Master Servicer by
the Servicer
Exhibit D Calculation of Realized Loss/Gain Form 332
Exhibit E Standard File Layout - Scheduled/Scheduled
Exhibit F Standard File Layout - Delinquency Reporting
Exhibit G Form of Mortgage Loan Sale and Contribution Agreement
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This Servicing Agreement, dated as of March 31, 2005, among
Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator (the
"Master Servicer" and the "Securities Administrator"), Ocwen Federal Bank, FSB,
as Servicer (the "Servicer"), Renaissance Home Equity Loan Trust 2005-1, as
Issuer (the "Issuer") and HSBC Bank USA, National Association, as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H T H A T :
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WHEREAS, pursuant to the terms of the Mortgage Loan Sale and
Contribution Agreement, dated March 31, 2005 (the "Mortgage Loan Sale and
Contribution Agreement"), among Delta Funding Corporation, as Originator,
Renaissance REIT Investment Corp., as Seller and the Depositor, as Purchaser,
the Depositor will acquire the Mortgage Loans;
WHEREAS, the Depositor will create Renaissance Home Equity
Loan Trust 2005-1, a Delaware statutory trust, and will transfer the Mortgage
Loans and all of its rights under the Mortgage Loan Sale and Contribution
Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement, dated as of March 31, 2005 (the "Trust Agreement"), among the
Depositor, as depositor, Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and Xxxxx Fargo Bank, N.A., as certificate registrar and certificate
paying agent, the Depositor will convey the Mortgage Loans to the Issuer in
exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Trust Certificates, Series 2005-1 (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
March 31, 2005 (the "Indenture") among the Issuer, the Indenture Trustee and the
Securities Administrator, the Issuer will pledge the Mortgage Loans to the
Indenture Trustee and issue and transfer to or at the direction of the Purchaser
the Home Equity Loan Asset-Backed Notes, Series 2005-1 (collectively, the
"Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement,
the Servicer will service the Mortgage Loans set forth on the Mortgage Loan
Schedule attached hereto as Exhibit A directly or through one or more
Sub-Servicers and the Master Servicer will provide master servicing functions;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Servicing
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Definitions contained in Appendix A
to the Indenture which is incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified herein.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Servicing Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof," "herein," "hereunder" and words
of similar import when used in this Servicing Agreement shall refer to this
Servicing Agreement as a whole and not to any particular provision of this
Servicing Agreement; Section and Exhibit references contained in this Servicing
Agreement are references to Sections and Exhibits in or to this Servicing
Agreement unless otherwise specified; and the term "including" shall mean
"including without limitation".
(c) The definitions contained in this Servicing Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; references to a Person are also to its permitted successors and
assigns.
Section 1.03. INTEREST CALCULATIONS. All calculations of
interest hereunder that are made in respect of the Principal Balance of a
Mortgage Loan shall be made on the basis of a 360-day year consisting of twelve
30-day months.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS
REGARDING THE SERVICER AND THE MASTER SERVICER.
(a) The Servicer hereby represents, warrants and
covenants to the Issuer and for the benefit of the Indenture Trustee, as pledgee
of the Mortgage Loans, the Securities Administrator, the Master Servicer and the
Noteholders that as of the Closing Date or as of such date specifically provided
herein:
(i) The Servicer is a federally chartered savings bank
duly organized, validly existing and in good standing under the laws of
the United States and has, and had at all relevant times, full power to
service the Mortgage Loans, to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Servicer and the performance by it of and compliance with the terms of
this Agreement will not violate the Servicer's charter or by-laws or
constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or result in the breach or
acceleration of, any material contract, agreement or other instrument
to which the Servicer is a party or which may be applicable to the
Servicer or any of its assets;
(iii) The Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement to be consummated by it, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
valid, legal and binding obligation of the Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the rights of
creditors generally or the rights of creditors of insured institutions,
and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) The Servicer is not in violation of, and the
execution and delivery of this Agreement by the Servicer and the
performance by it and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise)
or operations of the Servicer or any of its properties or materially
and adversely affect the performance of any of its duties hereunder;
(v) There are no actions or proceedings against, or
investigations of, the Servicer pending or, to the knowledge of the
Servicer, threatened, before any court,
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administrative agency or other tribunal (A) that, if determined
adversely, would prohibit its entering into this Agreement, (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement or (C) that, if determined adversely, would prohibit or
materially and adversely affect the performance by the Servicer of any
of its obligations under, or the validity or enforceability of, this
Agreement;
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of, or compliance by the
Servicer with, this Agreement, or for the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained
prior to the Closing Date;
(vii) No Officer's Certificate, statement, report or other
document prepared by the Servicer and furnished or to be furnished by
it pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact;
(viii) The Servicer believes that the Servicing Fee Rate
provides a reasonable level of base compensation to the Servicer for
servicing the Mortgage Loans on the terms set forth herein;
(ix) The transactions contemplated by this Agreement are
in the ordinary course of business of the Servicer;
(x) The collection practices used by the Servicer with
respect to the Mortgage Loans have been, in all material respects,
legal, proper, prudent and customary in the non-conforming mortgage
servicing business;
(xi) The Servicer is a member of MERS in good standing,
and will comply in all material respects with the rules and procedures
of MERS in connection with the servicing of the MERS Mortgage Loans for
as long as such Mortgage Loans are registered with MERS; and
(xii) The Servicer will file its report under Section 404
of the Xxxxxxxx-Xxxxx Act of 2002 with the Commission as provided in
its Form 10-K filed with the Commission in March 2005.
(b) The Master Servicer hereby represents, warrants and
covenants to the Issuer and for the benefit of the Indenture Trustee, as pledgee
of the Mortgage Loans, the Securities Administrator and the Noteholders that as
of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States and has, and had at all relevant times, full power to
master service the Mortgage Loans, to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
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(ii) The execution and delivery of this Agreement by the
Master Servicer and the performance by it of and compliance with the
terms of this Agreement will not violate the Master Servicer's charter
or by-laws or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in
the breach or acceleration of, any material contract, agreement or
other instrument to which the Master Servicer is a party or which may
be applicable to the Master Servicer or any of its assets;
(iii) The Master Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement to be consummated by it, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a
valid, legal and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the rights of
creditors generally or the rights of creditors of insured institutions,
and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) The Master Servicer is not in violation of, and the
execution and delivery of this Agreement by the Master Servicer and the
performance by it and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise)
or operations of the Master Servicer or any of its properties or
materially and adversely affect the performance of any of its duties
hereunder;
(v) There are no actions or proceedings against, or
investigations of, the Master Servicer pending or, to the knowledge of
the Master Servicer, threatened, before any court, administrative
agency or other tribunal (A) that, if determined adversely, would
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or (C) that, if determined adversely, would prohibit or materially and
adversely affect the performance by the Master Servicer of any of its
obligations under, or the validity or enforceability of, this
Agreement;
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of, or compliance by
the Master Servicer with, this Agreement, or for the consummation of
the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders, if any, that have been
obtained prior to the Closing Date; and
(vii) The transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer.
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(c) The representations and warranties set forth in this
Section 2.01 shall survive the sale and assignment of the Mortgage Loans to the
Trust. Upon discovery of a breach of any representations and warranties which
materially and adversely affects the interests of the Noteholders, the Person
discovering such breach shall give prompt written notice to the other parties.
Within sixty (60) days of its discovery or its receipt of notice of such breach,
or, with the prior written consent of a Responsible Officer of the Indenture
Trustee or the Securities Administrator, such longer period specified in such
consent, the Master Servicer or the Servicer, as the case may be, shall cure
such breach in all material respects.
Section 2.02. EXISTENCE. The Issuer will keep in full effect
its existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect its existence, rights
and franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Servicing Agreement.
Section 2.03. ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES.
Upon discovery by the Seller, the Depositor, the Servicer, the Master Servicer
or a Responsible Officer of the Indenture Trustee or the Securities
Administrator of a breach of any of the representations and warranties made by
the Originator in the Mortgage Loan Sale and Contribution Agreement (attached
hereto as Exhibit G), which materially and adversely affects the value of, or
the interests of the Trust or the Noteholders in, the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the
Originator. Within sixty (60) days of its discovery or its receipt of notice of
breach, the Indenture Trustee shall enforce the obligation of the Originator to
use all reasonable efforts to cure such breach in all material respects or
purchase such Mortgage Loan from the Trust or substitute an Eligible Substitute
Mortgage Loan as provided in Section 3.2 of the Mortgage Loan Sale and
Contribution Agreement for such Mortgage Loan. Any such purchase by the
Originator shall be at the Purchase Price, and in each case shall be
accomplished in the manner set forth in Section 3.1 of the Mortgage Loan Sale
and Contribution Agreement. It is understood and agreed that the obligation of
the Originator to cure, substitute or purchase any Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
against the Originator respecting such breach available to the Servicer (in its
role as such), the Master Servicer (in its role as such), the Noteholders, the
Securities Administrator or the Indenture Trustee on behalf of Noteholders.
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ARTICLE III
ADMINISTRATION ANDSERVICING OF MORTGAGE LOANS
Section 3.01. THE SERVICER.
(a) The Servicer, as independent contract servicer, shall
service and administer the Mortgage Loans consistent with the terms of this
Agreement. The Servicer may enter into Subservicing Agreements for any servicing
and administration of Mortgage Loans with any institution which (i) is in
compliance with the laws of each state necessary to enable it to perform its
obligations under such Subservicing Agreement and (ii) meets the requirements of
clause (2) of the definition of an Approved Servicer or is an affiliate of the
Servicer. The Servicer shall give notice to the Master Servicer of the
appointment of any Subservicer. Any such Subservicing Agreement shall be
consistent with and not violate the provisions of this Agreement. The Servicer
shall be entitled to terminate any Subservicing Agreement in accordance with the
terms and conditions of such Subservicing Agreement and either itself directly
service the related Mortgage Loans or enter into a Subservicing Agreement with a
successor subservicer which qualifies hereunder.
(b) Notwithstanding any Subservicing Agreement or any of
the provisions of this Agreement relating to agreements or arrangements between
the Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the Servicer shall remain obligated and primarily
liable for the servicing and administering of the Mortgage Loans in accordance
with the provisions of this Agreement without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering the Mortgage Loans. For purposes of this Agreement, the Servicer
shall be deemed to have received payments on Mortgage Loans when the Subservicer
has received such payments. The Servicer shall be entitled to enter into any
agreement with a Subservicer for indemnification of the Servicer by such
Subservicer, and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
(c) Any Subservicing Agreement that may be entered into
and any transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such and not as an originator shall be deemed to
be between the Subservicer and the Servicer alone, and the Indenture Trustee,
the Master Servicer, the Securities Administrator and Noteholders shall not be
deemed parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section
3.01(d). The Servicer shall be solely liable for all fees owed by it to any
Subservicer irrespective of whether the Servicer's compensation pursuant to this
Agreement is sufficient to pay such fees.
(d) In the event the Servicer shall for any reason no
longer be the Servicer (including by reason of a Servicer Event of Default), the
Successor Servicer or its designee approved by the Master Servicer shall
thereupon assume all of the rights and obligations of the Servicer under each
Subservicing Agreement that the Servicer may have entered into, unless the
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Successor Servicer or designee approved by the Master Servicer elects to
terminate any Subservicing Agreement. Any fee payable in connection with such a
termination will be payable by the outgoing Servicer. If the Successor Servicer
does not terminate the Subservicing Agreements, the Successor Servicer, its
designee or the successor servicer for the Successor Servicer shall be deemed to
have assumed all of the Servicer's interest therein and to have replaced the
Servicer as a party to each Subservicing Agreement to the same extent as if the
Subservicing Agreements had been assigned to the assuming party, except that the
Servicer shall not thereby be relieved of any liability or obligations under the
Subservicing Agreements with regard to events that occurred prior to the date
the Servicer ceased to be the Servicer hereunder. The Servicer, at its expense
and without right of reimbursement therefor, shall, upon the request of the
Successor Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
(e) Consistent with the terms of this Agreement, the
Servicer may waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Servicer's good faith determination such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of the Noteholders, PROVIDED, HOWEVER, that (unless the Mortgagor
is in default with respect to the Mortgage Loan, or such default is, in the
judgment of the Servicer, imminent) the Servicer may not permit any modification
with respect to any Mortgage Loan that would change the Loan Rate, defer or
forgive the payment of any principal or interest (unless in connection with the
liquidation of the related Mortgage Loan) or extend the final maturity date on
the Mortgage Loan. No costs incurred by the Servicer or any Subservicer in
respect of Servicing Advances shall, for the purposes of payments to
Noteholders, be added to the amount owing under the related Mortgage Loan.
Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered to execute and deliver on behalf of the
Indenture Trustee and each Noteholder, all instruments of satisfaction or
cancellation, of partial or full release, or of discharge and all other
comparable instruments with respect to the Mortgage Loans and with respect to
the Mortgaged Properties. If reasonably required by the Servicer, the Indenture
Trustee shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary contained herein, the
Servicer, in servicing and administering the Mortgage Loans, shall employ or
cause to be employed procedures (including collection, foreclosure and REO
Property management procedures) and exercise the same care that it customarily
employs and exercises in servicing and administering mortgage loans for its own
account, in accordance with accepted mortgage servicing practices of prudent
lending institutions servicing mortgage loans similar to the Mortgage Loans and
giving due consideration to the Noteholders' reliance on the Servicer.
(f) Within ninety (90) days after such time as each of
the Indenture Trustee, the Master Servicer and the Securities Administrator
receives the resignation of, or notice of the removal of, the Servicer from its
rights and obligations under this Agreement, and with respect to
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resignation pursuant to Section 5.04, after receipt by the Indenture Trustee and
the Securities Administrator of the Opinion of Counsel required pursuant to
Section 5.04, the Successor Servicer shall assume all of the rights and
obligations of the Servicer, subject to Section 6.02; provided that if the
Servicer is removed pursuant to Section 6.02, the Successor Servicer shall
immediately be obligated to make Monthly Advances and Servicing Advances as
required in this Agreement. The Servicer shall, upon request of the Successor
Servicer but at the expense of the Servicer, deliver to the Successor Servicer
all documents and records relating to the Mortgage Loans and an accounting of
amounts collected and held by the Servicer and otherwise use its best efforts to
effect the orderly and efficient transfer of servicing rights and obligations to
the assuming party who shall be entitled to reimbursement by the Servicer (or,
to the extent not paid by the Servicer, by the Trust prior to payments to
Noteholders) for Servicing Transfer Costs.
(g) The Servicer shall deliver a list of Servicing
Officers to the Indenture Trustee, the Master Servicer and the Securities
Administrator on or before the Closing Date.
(h) Consistent with the terms of this Agreement, the
Servicer may consent to the placing of a lien senior to that of the Mortgage on
the related Mortgaged Property; PROVIDED that such senior lien secures a
mortgage loan that refinances a First Lien and the Combined Loan-to-Value Ratio
of the related Mortgage Loan immediately following the refinancing (based on the
outstanding principal balance of the Mortgage Loan and the original principal
balance of such refinanced mortgage loan) is not greater than the Combined
Loan-to-Value Ratio of such Mortgage Loan as of the related Cut-Off Date.
(i) The Servicer is authorized and empowered by the
Indenture Trustee, on behalf of the Noteholders and the Indenture Trustee, in
its own name or in the name of any Subservicer, when the Servicer or any
Subservicer, as the case may be, believes it appropriate in its best judgment to
register any Mortgage Loan on the MERS(R) System, or cause the removal from the
registration of any Mortgage Loan on the MERS(R) System, to execute and deliver,
on behalf of the Indenture Trustee and the Noteholders or any of them, any and
all instruments of assignment and other comparable instruments with respect to
such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Indenture Trustee and its successors and assigns.
Section 3.02. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.
(a) The Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures as it follows with respect to mortgage loans
in its servicing portfolio comparable to the Mortgage Loans. Consistent with the
foregoing, and without limiting the generality of the foregoing, the Servicer
may in its discretion (i) subject to the provisions of Section 3.21 hereof,
waive any prepayment charge, late payment charge or any assumption fees or other
fees which may be collected in the ordinary course of servicing such Mortgage
Loan and (ii) arrange with a Mortgagor a schedule for the payment of interest
due and unpaid; PROVIDED that such arrangement is consistent with the Servicer's
policies with respect to the mortgage loans it owns or services; PROVIDED,
FURTHER, that notwithstanding such arrangement such Mortgage Loans will
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be included in the monthly information delivered by the Servicer to the Master
Servicer pursuant to Section 3.23.
(b) The Servicer shall establish and maintain a separate
trust account (the "Collection Account") titled "HSBC Bank USA, National
Association, as Indenture Trustee, in trust for the registered holders of
Renaissance Home Equity Loan Trust 2005-1 Asset-Backed Notes, Series 2005-1".
The Collection Account shall be an Eligible Account. On the Closing Date, the
Seller shall cause to be deposited in the Collection Account any amounts
representing payments on and any collections in respect of the Mortgage Loans
received after the related Cut-Off Date (other than principal and interest
accrued and due on or prior to March 1, 2005) and prior to the Closing Date. The
Servicer shall deposit within two (2) Business Days following receipt thereof
the following payments and collections received or made by it (without
duplication):
(i) all payments received after the related Cut-Off Date
on account of principal on the Mortgage Loans (exclusive of payments in
respect of principal on the Mortgage Loans which were due on or prior
to the related Cut-off Date) and all Principal Prepayments and
Curtailments collected after the related Cut-Off Date;
(ii) all payments received after the related Cut-Off Date
on account of interest on the Mortgage Loans (exclusive of payments in
respect of interest on the Mortgage Loans which have accrued and were
due on or prior to the related Cut-Off Date);
(iii) all Net Liquidation Proceeds net of Foreclosure
Profits;
(iv) all Insurance Proceeds other than any portion thereof
constituting Net Liquidation Proceeds;
(v) all Released Mortgaged Property Proceeds;
(vi) any amounts payable in connection with the repurchase
of any Mortgage Loan and the amount of any Substitution Adjustment
pursuant to Sections 2.1(f), 3.1 or 3.2 of the Mortgage Loan Sale and
Contribution Agreement and Section 3.16 hereof;
(vii) any amount required to be deposited in the Collection
Account pursuant to Sections 3.02, 3.04, 3.05, 3.06, 3.07, 3.14,
3.15(d), 3.16 and 3.21;
(viii) any Prepayment Charges; and
(ix) the Purchase Price of any Mortgage Loan repurchased
by the Originator pursuant to the Mortgage Loan Sale and Contribution
Agreement and remitted by the Originator to the Servicer;
PROVIDED, HOWEVER, that, with respect to each Due Period, the Servicer shall be
permitted to retain (x) from payments in respect of interest on a Mortgage Loan,
the Servicing Fee and any Ancillary Income for such Mortgage Loan and (y) from
payments from Mortgagors, Liquidation Proceeds, Insurance Proceeds and Released
Mortgaged Property Proceeds, any unreimbursed Servicing Advances and Monthly
Advances or unpaid Servicing Fees related thereto. The
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foregoing requirements respecting deposits to the Collection Account are
exclusive, it being understood that, without limiting the generality of the
foregoing, the Servicer need not deposit in the Collection Account amounts
representing Servicing Compensation or amounts received by the Servicer for the
accounts of Mortgagors for application toward the payment of taxes, insurance
premiums, assessments and similar items.
The Servicer may cause the institution maintaining the
Collection Account to invest any funds in the Collection Account in Eligible
Investments (including obligations of the Servicer or any of its Affiliates, if
such obligations otherwise qualify as Eligible Investments) pursuant to Section
3.01 of the Indenture. No such investment shall mature later than the Deposit
Date. The Servicer shall deposit in the Collection Account, the amount of any
loss incurred in respect of any Eligible Investment held therein which is in
excess of the income and gain thereon immediately upon realization of such loss,
without any right to reimbursement therefore from its own funds.
Section 3.03. WITHDRAWALS FROM THE COLLECTION ACCOUNT.
The Servicer shall withdraw or cause to be withdrawn funds
from the Collection Account for the following purposes:
(i) before 1:00 p.m. (New York City time) on the related
Deposit Date to withdraw the remaining Available Funds and Prepayment
Charges, and, in each case, remit such funds to the Securities
Administrator for deposit to the Payment Account;
(ii) to reimburse the Servicer for any accrued unpaid
Servicing Compensation which the Servicer would not have been required
to deposit in the Collection Account and for unreimbursed Monthly
Advances and Servicing Advances. The Servicer's right to reimbursement
for unpaid Servicing Fees and unreimbursed Servicing Advances shall be
limited to late collections on the related Mortgage Loan, including
Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Servicer
from the related Mortgagor or otherwise relating to the Mortgage Loan
in respect of which such reimbursed amounts are owed. The Servicer's
right to reimbursement for unreimbursed Monthly Advances shall be
limited to late collections on any Mortgage Loan and to Liquidation
Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds and
any purchase or repurchase proceeds on related Mortgage Loans;
(iii) to withdraw any amount received from a Mortgagor that
is recoverable and sought to be recovered as a voidable preference by a
trustee in bankruptcy pursuant to the United States Bankruptcy Code in
accordance with a final, nonappealable order of a court having
competent jurisdiction;
(iv) to withdraw any funds deposited in the Collection
Account that were not required to be deposited therein (such as
Servicing Compensation) or were deposited therein in error and to pay
such funds to the appropriate Person;
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(v) to withdraw funds necessary for the conservation and
disposition of REO Property pursuant to Section 3.06 to the extent not
advanced by the Servicer;
(vi) to reimburse the Servicer for Nonrecoverable Advances
and any unpaid Servicing Fees related to a Mortgage Loan secured by a
second lien on the related Mortgaged Property to the extent not
recovered pursuant to clause (ii) above;
(vii) to pay to the Seller collections received in respect
of accrued interest and principal on the Mortgage Loans due on or
before the related Cut-Off Date;
(viii) to pay to the Servicer, the Master Servicer, the
Securities Administrator or the Indenture Trustee the portion of any
Purchase Price in respect of clause (iv) of the definition thereof or
of any Substitution Adjustment in respect of clause (d) of the
definition thereof to the extent paid in respect of amounts incurred by
or imposed on the Servicer, the Master Servicer, the Securities
Administrator or the Indenture Trustee, as the case may be;
(ix) to reimburse the Servicer for expenses incurred by it
in connection with the Mortgage Loans or Notes and reimbursable
pursuant to Section 5.03 hereof provided that such amount shall only be
withdrawn following the withdrawal from the Collection Account for
deposit into the Payment Account pursuant to clause (i) above; and
(x) to clear and terminate the Collection Account upon
the termination of this Agreement and to pay any amounts remaining
therein to the Certificateholders.
The parties to this Agreement acknowledge that Servicing
Advances shall be reimbursable pursuant to this Section 3.03, and agree that no
reimbursement of a Servicing Advance shall be rejected or disallowed by any
party unless it has been shown that such Servicing Advance was not made in
accordance with the terms of this Agreement.
Section 3.04. MAINTENANCE OF HAZARD INSURANCE; PROPERTY
PROTECTION EXPENSES.
The Servicer shall cause to be maintained for each Mortgage
Loan fire and hazard insurance naming the Servicer as loss payee thereunder
providing extended coverage in an amount which is at least equal to the least of
(x) the maximum insurable value of the improvements securing such Mortgage Loan
from time to time, (y) the combined principal balance owing on such Mortgage
Loan and any mortgage loan senior to such Mortgage Loan and (z) the minimum
amount required to compensate for damage or loss on a replacement cost basis.
The Servicer shall also maintain on property acquired upon foreclosure or by
deed in lieu of foreclosure hazard insurance with extended coverage in an amount
which is at least equal to the least of (i) the maximum insurable value from
time to time of the improvements which are a part of such property, (ii) the
combined principal balance owing on such Mortgage Loan and any mortgage loan
senior to such Mortgage Loan and (iii) the minimum amount required to compensate
for damage or loss on a replacement cost basis at the time of such foreclosure,
fire and/or deed in lieu of foreclosure plus accrued interest and the good-faith
estimate of the Servicer of related Servicing Advances to be incurred in
connection therewith. Amounts collected by the Servicer under any such policies
shall be deposited in the Collection Account to
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the extent called for by Section 3.02. In cases in which any Mortgaged Property
is located in a federally designated flood area, the hazard insurance to be
maintained for the related Mortgage Loan shall include flood insurance to the
extent such flood insurance is available and the Servicer has determined such
insurance to be necessary in accordance with accepted mortgage loan servicing
standards for mortgage loans similar to the Mortgage Loans. All such flood
insurance shall be in amounts equal to the least of (A) the amount in clause (x)
above, (B) the amount in clause (y) above and (C) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
The Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or other additional insurance and shall be under no obligation itself
to maintain any such additional insurance on property acquired in respect of a
Mortgage Loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
The costs and expenses incurred by the Servicer in maintaining any such
insurance shall constitute Servicing Advances.
Section 3.05. MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE
POLICY.
In the event that the Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy rating of A:VIII or
better in Best's Key Rating Guide, then, to the extent such policy names the
Servicer as loss payee and provides coverage in an amount equal to the aggregate
unpaid principal balance on the Mortgage Loans without co-insurance, and
otherwise complies with the requirements of Section 3.04, the Servicer shall be
deemed conclusively to have satisfied its obligations with respect to fire and
hazard insurance coverage under Section 3.04, it being understood and agreed
that such blanket policy may contain a deductible clause, in which case the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property a policy complying with Section 3.04, and there shall
have been a loss which would have been covered by such policy, deposit in the
Collection Account the difference, if any, between the amount that would have
been payable under a policy complying with Section 3.04 and the amount paid
under such blanket policy. Upon the request of the Indenture Trustee or the
Master Servicer, the Servicer shall cause to be delivered to the such party, a
certified true copy of such policy. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Indenture Trustee, and the Noteholders,
claims under any such policy in a timely fashion in accordance with the terms of
such policy.
Section 3.06. MANAGEMENT AND REALIZATION UPON DEFAULTED
MORTGAGE LOANS.
The Servicer shall manage, conserve, protect and operate each
REO Property for the Noteholders solely for the purpose of its prudent and
prompt disposition and sale; provided that the Servicer shall not be required to
expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it shall determine (i) that such restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan after reimbursement to itself of such expenses and (ii) that such expenses
will be recoverable to it through Liquidation Proceeds (respecting which it
shall have priority for purposes of withdrawals from the Certificate Account
pursuant to Section 3.03 hereof). The Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided that
it shall be entitled to reimbursement thereof from the proceeds of liquidation
of the related Mortgaged Property, as contemplated in Section 3.03 hereof. The
Servicer shall, either itself or through an agent
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selected by the Servicer, 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 Servicer shall
attempt to sell the same (and may temporarily rent the same) on such terms and
conditions as the Servicer deems to be in the best interest of the Noteholders.
The Servicer shall cause to be deposited, no later than two
(2) Business Days after the receipt thereof, in the Collection Account, all
revenues received with respect to the related REO Property and shall retain, or
request the Indenture Trustee to withdraw therefrom, funds necessary for the
proper operation, management and maintenance of the REO Property and the fees of
any managing agent acting on behalf of the Servicer.
The disposition of REO Property shall be carried out by the
Servicer for cash at such price, and upon such terms and conditions, as the
Servicer deems to be in the best interest of the Noteholders and, as soon as
practicable thereafter, the expenses of such sale shall be paid out of the
proceeds of such sale. The cash proceeds of sale of the REO Property shall be
promptly deposited in the Collection Account, net of Foreclosure Profits and of
any related unreimbursed Servicing Advances, accrued and unpaid Servicing Fees
and unreimbursed Monthly Advances payable to the Servicer in accordance with
Section 3.03, for payment to the Noteholders in accordance with Section 3.05 of
the Indenture.
The Servicer shall foreclose upon or otherwise comparably
convert to ownership Mortgaged Properties securing such of the Mortgage Loans as
come into and continue in default when no satisfactory arrangements can be made
for collection of delinquent payments pursuant to Section 3.02.
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 issued to the Indenture Trustee or to its nominee on behalf of
Noteholders.
In the event any Mortgaged Property is acquired as aforesaid
or otherwise in connection with a default or imminent default on a Mortgage
Loan, the Servicer shall (i) dispose of such Mortgaged Property within three (3)
years after the close of the taxable year in which the Mortgaged Property was
acquired (the "grace period") or (ii) prior to the expiration of any extension
to such grace period which is requested on behalf of the Trust by the Servicer
(at the expense of the Trust) more than sixty (60) days prior to the end of the
grace period and granted by the Internal Revenue Service, unless the Trust shall
have received an Opinion of Counsel to the effect that the holding of such
Mortgaged Property subsequent to expiration of the grace period would not cause
such Mortgaged Property to fail to constitute "foreclosure property" as defined
in the Code.
If the Servicer has actual knowledge that a Mortgaged Property
which the Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a one-mile radius of any site with
environmental or hazardous waste risks known to the Servicer, the Servicer will
notify the Master Servicer prior to acquiring the Mortgaged Property. Nothing in
this Section 3.06 shall affect the Servicer's right to deem certain advances
proposed to be made Nonrecoverable Advances. For the purpose of this Section
3.06, actual knowledge of
17
the Servicer means actual knowledge of a Responsible Officer of the Servicer
involved in the servicing of the relevant Mortgage Loan. Actual knowledge of the
Servicer does not include knowledge imputable by virtue of the availability of
or accessibility to information relating to environmental or hazardous waste
sites or the locations thereof.
Section 3.07. INDENTURE TRUSTEE TO COOPERATE.
Upon any Principal Prepayment, the Servicer is authorized to
execute, pursuant to the authorization contained in Section 3.01(e), if the
related Assignment of Mortgage has been recorded as required hereunder, an
instrument of satisfaction regarding the related Mortgage, which instrument of
satisfaction shall be recorded by the Servicer if required by applicable law and
be delivered to the Person entitled thereto. The Servicer is also authorized to
cause the removal from the registration on the MERS System of such Mortgage and
to execute and deliver, on behalf of the Indenture Trustee and the Noteholders
or any of them, any and all instruments of satisfaction or cancellation or of
partial or full release. It is understood and agreed that no expenses incurred
in connection with such instrument of satisfaction or transfer shall be
reimbursed from amounts deposited in the Collection Account. If the Indenture
Trustee or Custodian is holding the Mortgage Files, from time to time and as
appropriate for the servicing or foreclosure of any Mortgage Loan, the Indenture
Trustee or Custodian shall, upon request of the Servicer or the Master Servicer
and delivery to the Custodian of two (2) copies of a Request for Release, one of
which will be returned to the Servicer or the Master Servicer with the Mortgage
File, in the form annexed hereto as Exhibit B, signed by a Servicing Officer or
a Master Servicing Officer or in a mutually agreeable electronic format which
originates from a Servicing Officer or a Master Servicing Officer, release the
related Mortgage File to the Servicer or the Master Servicer, and the Indenture
Trustee or Custodian shall execute such documents, in the forms provided by the
Servicer or the Master Servicer, as shall be necessary for the prosecution of
any such proceedings or the taking of other servicing or master servicing
actions. Such Request for Release shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Indenture Trustee or the Custodian,
as the case may be, when the need therefor by the Servicer or the Master
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in which
case, upon receipt of a certificate of a Servicing Officer or Master Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Indenture Trustee or Custodian to the Servicer or the Master
Servicer.
In addition to the foregoing, the Indenture Trustee or
Custodian shall release to the Seller, any Mortgage File for which the Seller
has repurchased or substituted for the related Mortgage Loan pursuant to the
Mortgage Loan Sale and Contribution Agreement and the Indenture Trustee or the
Custodian shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the Seller or
its designee any Mortgage Loan released pursuant hereto. If, pursuant to Section
2.1(f) of the Mortgage Loan Sale and Contribution Agreement, the Seller
repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall, at
the Seller's expense, either (i) cause MERS to execute and deliver an Assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the Seller
and shall cause such Mortgage to be removed from registration on the MERS(R)
System in accordance with MERS' rules and regulations or (ii) cause MERS to
designate on the MERS(R) System the Seller as the beneficial holder of such
Mortgage Loan.
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Section 3.08. SERVICING COMPENSATION; PAYMENT OF CERTAIN
EXPENSES BY SERVICER.
Subject to Section 3.14, the Servicer shall be entitled to
retain the Servicing Fee in accordance with Section 3.02 as compensation for its
services in connection with servicing the Mortgage Loans. Moreover, late payment
charges or other receipts not required to be deposited in the Collection
Account, including, without limitation, Foreclosure Profits, Ancillary Income
and, subject to Section 3.01 of the Indenture, investment income on the
Collection Account shall be additional servicing compensation and retained by
the Servicer. The Servicer shall be required to pay all expenses incurred by it
in connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided herein.
Section 3.09. ANNUAL STATEMENT AS TO COMPLIANCE.
(a) The Servicer will deliver to the Seller, the Master Servicer and the Rating
Agencies, on or before March 15 of each year, beginning with delivery on March
15, 2006, an Officer's Certificate stating that a review of the activities of
the Servicer during the preceding calendar year and of its performance under
this Agreement has been made under such officer's supervision and to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
its material obligations under this Agreement throughout such calendar 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. The Servicer shall promptly notify the Seller, the Master Servicer and
each Rating Agency upon any change in the basis on which its fiscal year is
determined.
(b) The Servicer shall deliver to the Master Servicer and each of the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than five (5) Business Days thereafter, written notice by means of an
Officer's Certificate of any event which, with the giving of notice or the lapse
of time or both, would become an Event of Default.
Section 3.10. ANNUAL SERVICING REVIEW.
Not later than March 15 of each year, beginning with the
letter due March 15, 2006, the 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 letter or letters to the Seller, the
Master Servicer and each Rating Agency to the effect that such firm has, with
respect to the Servicer's overall servicing operations, examined such operations
in accordance with the requirements of the Uniform Single Attestation Program
for Mortgage Bankers, and stating such firm's conclusions relating thereto. The
Servicer shall disclose to its certified public accountants all significant
deficiencies relating to the Servicer's compliance with the minimum servicing
standards in accordance with the aforementioned review, and all such disclosed
deficiencies, if any, shall be included as part of the letter furnished pursuant
to this Section 3.10.
Section 3.11. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS.
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The Servicer shall provide to the Seller, the Indenture
Trustee, the Master Servicer, the Custodian, Noteholders, and Note Owners which
are federally insured savings and loan associations, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of the Office of
Thrift Supervision access to the documentation in the Servicer's possession
regarding the Mortgage Loans required by applicable regulations of the Office of
Thrift Supervision and the FDIC (acting as operator of the SAIF or the BIF),
such access being afforded without charge but only upon reasonable request and
during normal business hours at the offices of the Servicer. Nothing in this
Section 3.11 shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.11 as a result of such obligation shall not constitute a breach of this
Section 3.11. The Servicer shall not be required to make copies of or ship
documents to any party unless provisions have been made for the reimbursement of
costs thereof; provided, however, that no such reimbursement shall be required
from either the Indenture Trustee, the Master Servicer or the Custodian. In
addition the Seller shall have the right to review the Servicer's books and
records and perform all necessary testing in accordance with the PCAOB Release
No. 2004-001, dated March 9, 2004, as it pertains to the "Use of Service
Organizations."
Section 3.12. MAINTENANCE OF CERTAIN SERVICING INSURANCE
POLICIES.
The Servicer shall during the term of its service as servicer
maintain in force (i) a policy or policies of insurance covering errors and
omissions in the performance of its obligations as servicer hereunder and (ii) a
fidelity bond in respect of its officers, employees or agents. Each such policy
or policies and bond shall, together, comply with the requirements from time to
time of Xxxxxx Xxx for persons performing servicing for mortgage loans purchased
by Xxxxxx Mae. Upon reasonable request of the Depositor, the Servicer shall
provide to the Depositor evidence of such insurance or fidelity bond.
Section 3.13. REPORTS TO THE SECURITIES AND EXCHANGE
COMMISSION.
(a) The Securities Administrator, the Master Servicer and
the Servicer shall reasonably cooperate with the Depositor in connection with
the Trust's satisfying the reporting requirements under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). The Master Servicer shall prepare
on behalf of the Trust any Forms 8-K and 10-K customary for similar securities
as required by the Exchange Act and the Rules and Regulations promulgated
thereunder. The Master Servicer shall execute and cause to be filed (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) any such Form 10-K on behalf of the Depositor. The Master Servicer shall
execute and file any Form 8-K (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) on behalf of the Depositor and
the Issuer (on behalf of the Depositor) accordingly hereby grants to the Master
Servicer a limited power of attorney to execute and file any such Form 8-K and
Form 10-K on behalf of the Depositor. Such power of attorney shall continue
until the earlier of (i) receipt by the Master Servicer from the Depositor of
written termination of such power of attorney, and (ii) the termination of the
Trust. Prior to January 30 of the first year in which the Master Servicer is
able to do so under applicable law, the Master Servicer shall file a Form 15D
Suspension Notification with respect to the Trust. Each of the Indenture
Trustee, the Securities Administrator and the Servicer agrees to promptly
furnish to the Master Servicer, from time to
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time upon request, such further information, reports, and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Master Servicer reasonably deems appropriate to prepare and file all necessary
reports with the Securities and Exchange Commission ("SEC"). The Master Servicer
shall have no responsibility to file any items or reports other than those
specified in this Section 3.13.
(b) Each Form 8-K (except for the initial Form 8-K in
connection with the filing of this Agreement, which shall be filed by the
Depositor) shall be filed by the Master Servicer within 15 days after each
Payment Date, with a copy of the statement to the Noteholders for such Payment
Date as an exhibit thereto. On or prior to March 30th of each year commencing in
2006 (or such other date as may be required by the Exchange Act and the Rules
and Regulations of the SEC), the Master Servicer shall file a Form 10-K, in
substance as required by applicable law or applicable SEC staff interpretations.
Such Form 10-K shall include as exhibits the Servicer's and the Master
Servicer's annual statement of compliance described under Section 3.09 and
Section 4.10 and the accountant's report described under Sections 3.10 and 4.11,
with respect to the Servicer and the Master Servicer, to the extent they have
been timely delivered to the Master Servicer. The Form 10-K shall also include
the certification in the form set forth in Section 3.13(c) below (the
"Certification"), which shall be signed by the senior officer of the Master
Servicer. If they are not so timely delivered, the Master Servicer shall file a
Form 12b-25 no later than one business day following March 30th of such year (or
such earlier date as may be required by the Exchange Act and the Rules and
Regulations of the SEC), in substance as required by applicable law or
applicable SEC staff interpretations. In such event, the Master Servicer shall
use reasonable efforts to file an amended Form 10-K including such documents as
exhibits on or prior to April 15th of such year. If the amended Form-10K is not
so timely filed, the Master Servicer and the Depositor shall use reasonable
efforts to cooperate with the SEC to remedy such failure to timely file. The
Master Servicer shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the Master
Servicer's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct.
(c) Unless the SEC issues written guidance to the
contrary or otherwise informs the Seller, the Depositor, the Indenture Trustee,
the Securities Administrator, the Master Servicer or the Servicer in writing
that the approach set forth below is not permissible, the parties agree that the
Form 10-K shall include the following certification:
MASTER SERVICER
I, _______________, certify that
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing
reports filed in respect of periods included in respect of
periods included in the year covered by this annual report, of
Renaissance Home Equity Loan Trust 2005-1;
2. Based on my knowledge, the information in these reports, 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 light of the circumstances under
which
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such statements were made, not misleading as of the last day
of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the
servicer under the pooling and servicing, or similar,
agreement, for inclusion in these reports is included in these
reports;
4. Based on my knowledge and upon the annual compliance statement
included in the report and required to be delivered to the
trustee in accordance with the terms of the pooling and
servicing, or similar, agreement, and except as disclosed in
the reports, the servicer has fulfilled its obligations under
the servicing agreement;and
5. The reports disclose all significant deficiencies relating to
the servicer's compliance with the minimum servicing standards
based upon the report provided by an independent public
accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or
similar procedure, as set forth in the pooling and servicing,
or similar, agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties:
Date:_________________________ ______________________
Name:
Title:
Notwithstanding anything in this Agreement, the above
certifications may be changed from time to time by the Master Servicer without
the consent of any other parties to comply with any changes in applicable law.
(d) The Master Servicer agrees to furnish to each of the
Depositor and the Servicer (to the extent such forms are not available on the
internet website of the SEC) copies of each Form 8-K, including any executed
reports, statements or other information included in such filing, filed with the
SEC as provided in (a) above and a draft of the Form 10-K in the form proposed
to the filed, including any executed reports, statements or other information
included in such filing, and together with the foregoing Certification to be
executed by the Depositor, at least five Business Days prior to the proposed
filing date. In addition, unless the Securities Administrator and Master
Servicer are the same entity, the Securities Administrator shall sign a
certification (in the form attached hereto as Exhibit C-1) for the benefit of
the Master Servicer and its officers, directors and Affiliates regarding certain
aspects of items 1, 2 and 3 of the Master Servicer's Certification set forth in
(c) above (provided, however, that the Securities Administrator shall not
undertake an analysis of the accountant's reports attached as an exhibit to the
Form 10-K).
(e) The Servicer shall sign a certification (in the form
attached hereto as Exhibit C-2) for the benefit of the Master Servicer and its
officers, directors and Affiliates.
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(f) The Depositor, the Servicer, the Master Servicer, the
Securities Administrator and the Indenture Trustee agree to use their good faith
efforts to cooperate in complying with the requirements of this Section 3.13.
(g) The Securities Administrator covenants and agrees to
indemnify the Master Servicer and its officers, directors, employees and agents
from, and hold it harmless against, any and all losses, liabilities, damages,
claims or expenses incurred in connection with or relating to the inaccuracy of
the Securities Administrator's certification to the Master Servicer. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, then the Securities Administrator, in connection
with or relating to the inaccuracy of the Securities Administrator's
certification to the Master Servicer, agrees that it shall contribute to the
amount paid or payable by the Master Servicer as a result of the losses,
liabilities, damages, claims or expenses of the Master Servicer in such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the Securities Administrator on the one hand and the Master Servicer
on the other. The indemnity provided by this paragraph shall not be effective if
the Securities Administrator and the Master Servicer are the same entity.
(h) The Servicer covenants and agrees to indemnify the
Master Servicer and its officers, directors, employees and agents from, and hold
it harmless against, any and all losses, liabilities, damages, claims or
expenses incurred in connection with or relating to the inaccuracy of the
Servicer's certification to the Master Servicer. If the indemnification provided
for herein is unavailable or insufficient to hold harmless the Master Servicer,
then the Servicer, in connection with or relating to the inaccuracy of the
Servicer's certification to the Master Servicer, agrees that it shall contribute
to the amount paid or payable by the Master Servicer as a result of the losses,
liabilities, damages, claims or expenses of the Master Servicer in such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the Servicer on the one hand and the Master Servicer on the other.
(i) The Master Servicer and its counsel and the Servicer
and its counsel shall reasonably cooperate with the Depositor and its counsel to
enter into such amendments or modifications to this Agreement as may be
necessary to comply with any rules promulgated by the SEC and any
interpretations thereof by the staff of the SEC, subject to the provisions of
Section 7.01 hereof.
Section 3.14. COMPENSATING INTEREST.
Not later than the Determination Date, the Servicer shall
deposit to the Collection Account an amount equal to the lesser of (A) the
aggregate of the Prepayment Interest Shortfalls for the related Payment Date
resulting from Principal Prepayments in full during the related Prepayment
Period and (B) an amount equal to the product of (i) 1/12, (ii) the Servicing
Fee Rate and (iii) the Pool Balance as of the first day of the related Due
Period. The Servicer shall not have the right to reimbursement for any amounts
deposited to the Collection Account pursuant to this Section 3.14.
Section 3.15. ADVANCES BY THE SERVICER.
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(a) Not later than 1:00 p.m. New York time on the Deposit
Date related to each Payment Date, the Servicer shall remit to the Securities
Administrator for deposit in the Payment Account an amount to be paid on the
related Payment Date pursuant to Section 3.05 of the Indenture, equal to the
Monthly Payment due on each Mortgage Loan during the related Due Period, but not
received as of the related Determination Date (net of the Servicing Fee) such
amount being defined herein as the "Monthly Advance." With respect to any
Balloon Loan that is delinquent on its maturity date, the Servicer will continue
to make Monthly Advances with respect to such Balloon Loan in an amount equal to
one month's interest on the unpaid principal balance at the applicable Loan Rate
(net of the Servicing Fee) according to the original amortization schedule for
such Mortgage Loan. The obligation to make Monthly Advances with respect to each
Mortgage Loan shall continue until such Mortgage Loan becomes a Liquidated
Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, (i)
no Servicing Advance or Monthly Advance shall be required to be made hereunder
if the Servicer determines that such Servicing Advance or Monthly Advance would,
if made, constitute a Nonrecoverable Advance and (ii) no Monthly Advance or
Servicing Advance shall be required with respect to Civil Relief Act Interest
Shortfalls.
(c) All Monthly Advances and Servicing Advances,
including any Nonrecoverable Advances shall be reimbursed on a "first in, first
out" ("FIFO") basis.
(d) So long as the Servicer is Ocwen Federal Bank FSB or
otherwise has long-term debt rated at least investment grade by one of the
Rating Agencies, Monthly Advances may be made by the Servicer either (i) from
its own funds or (ii) from the Collection Account, to the extent of funds held
therein for future distribution (in which case it will cause to be made an
appropriate entry in the records of the Collection Account that amounts held for
future distribution have been, as permitted by this Section 3.15, used by the
Servicer in discharge of any such Monthly Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Monthly Advances to
be made by the Servicer with respect to the Mortgage Loans and REO Properties.
Any amounts held for future distribution and so used shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit in
the Collection Account on or before the next Deposit Date.
Section 3.16. OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
The Servicer, in its sole discretion, shall have the right to
elect (by written notice sent to the Master Servicer) to purchase for its own
account from the Trust any Mortgage Loan which is ninety (90) days or more
delinquent in the manner and at the price specified in the Mortgage Loan
Purchase Agreement. The Purchase Price for any Mortgage Loan purchased hereunder
shall be deposited in the Collection Account and the Indenture Trustee, upon
receipt of such deposit in the Payment Account by the Securities Administrator,
shall release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser of
such Mortgage Loan shall succeed to all the Indenture Trustee's right, title and
interest in and to such
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Mortgage Loan and all security and documents related thereto. Such assignment
shall be an assignment outright and not for security. The purchaser of such
Mortgage Loan shall thereupon own such Mortgage Loan, and all security and
documents, free of any further obligation to the Indenture Trustee or the
Noteholders with respect thereto.
Section 3.17. SUPERIOR LIENS.
The Servicer shall file (or cause to be filed) a request for
notice of any action by a superior lienholder under a First Lien for the
protection of the Indenture Trustee's interest, where permitted by local law and
whenever applicable state law does not require that a junior lienholder be named
as a party defendant in foreclosure proceedings in order to foreclose such
junior lienholder's equity of redemption.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the First Lien,
or has declared or intends to declare a default under the mortgage or the
promissory note secured thereby, or has filed or intends to file an election to
have the Mortgaged Property sold or foreclosed, the Servicer shall take, on
behalf of the Trust, whatever actions are necessary to protect the interests of
the Noteholders and/or to preserve the security of the related Mortgage Loan.
The Servicer shall promptly notify the Indenture Trustee of any such action or
circumstances. The Servicer shall advance the necessary funds to cure the
default or reinstate the superior lien, if such advance is in the best interests
of the Noteholders in accordance with the servicing standards in Section 3.01.
The Servicer shall not make such an advance except to the extent that it
determines in its reasonable good faith judgment that the advance would be
recoverable from Liquidation Proceeds on the related Mortgage Loan and in no
event in an amount that is greater than the Principal Balance of the related
Mortgage Loan. The Servicer shall thereafter take such action as is necessary to
recover the amount so advanced.
Section 3.18. ASSUMPTION AGREEMENTS.
When a Mortgaged Property has been or is about to be conveyed
by the Mortgagor, the Servicer shall, to the extent it has knowledge of such
conveyance or prospective conveyance, exercise its right to accelerate the
maturity of the related Mortgage Loan under any "due-on-sale" clause contained
in the related Mortgage or Mortgage Note; PROVIDED, HOWEVER, that the Servicer
shall not exercise any such right if the "due-on-sale" clause, in the reasonable
belief of the Servicer, is not enforceable under applicable law. In such event,
the Servicer shall enter into an assumption and modification agreement with the
person to whom such property has been or is about to be conveyed, pursuant to
which such person shall become liable under the Mortgage Note and, unless
prohibited by applicable law, the Mortgagor shall remain liable thereon. The
Servicer, in accordance with accepted mortgage loan servicing standards for
mortgage loans similar to the Mortgage Loans, is also authorized to enter into a
substitution of liability whereby such person is substituted as mortgagor and
becomes liable under the Mortgage Note. The Servicer shall notify the Indenture
Trustee and the Master Servicer that any such substitution or assumption
agreement has been completed by forwarding to the Indenture Trustee and the
Master Servicer the original of such substitution or assumption agreement which
original shall be added by the Indenture Trustee or its Custodian to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other
25
documents and instruments constituting a part thereof. In connection with any
assumption or substitution agreement entered into pursuant to this Section 3.18,
the Servicer shall not change the Loan Rate or the Monthly Payment, defer or
forgive the payment of principal or interest, reduce the outstanding principal
amount or extend the final maturity date on such Mortgage Loan.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
Section 3.19. PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting fire and hazard insurance coverage.
With respect to each Mortgage Loan as to which the Servicer
maintains escrow accounts, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage guaranty insurance premiums, if any, 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 and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in any escrow account which shall have been estimated
and accumulated by the 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 Servicer shall, if it has received notice of a
default or deficiency, monitor such payments to determine if they are made by
the Mortgagor. The Servicer shall maintain a third-party (which may be an
Affiliate of the Servicer) tax monitoring service.
Section 3.20. ADVANCE FACILITY.
(a) The Servicer is hereby authorized to enter in to a
financing or other facility (any such arrangement, an "Advance Facility") under
which (1) the Servicer assigns or pledges to another Person (an "Advancing
Person") the Servicer's rights under this Agreement to be reimbursed for any
Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to
fund some or all Monthly Advances and/or Servicing Advances required to be made
by the Servicer pursuant to this Agreement. No consent of the Indenture Trustee,
the Master Servicer, the Securities Administrator, Noteholders or any other
party is required before the Servicer may enter into an Advance Facility;
PROVIDED, HOWEVER, that the consent of the Indenture Trustee, the Master
Servicer and the Securities Administrator shall be required before the Servicer
may cause to be outstanding at one time more than one Advance Facility with
respect to Monthly Advances or more than one Advance Facility with respect to
Servicing Advances. Notwithstanding the existence of any Advance Facility under
which an Advancing Person agrees to fund Monthly Advances and/or Servicing
Advances on the Servicer's behalf, the Servicer shall remain obligated pursuant
to this Agreement to make Monthly Advances and
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Servicing Advances pursuant to and as required by this Agreement. If the
Servicer enters into an Advance Facility, and for so long as an Advancing Person
remains entitled to receive reimbursement for any Monthly Advances including
Nonrecoverable Advances related thereto ("Monthly Advance Reimbursement
Amounts") and/or Servicing Advances including Nonrecoverable Advances related
thereto ("Servicing Advance Reimbursement Amounts" and together with Monthly
Advance Reimbursement Amounts, "Servicer Reimbursement Amounts") (in each case
to the extent that such type of Servicer Reimbursement Amount is included in the
Advance Facility, then the Servicer shall identify such Servicer Reimbursement
Amounts as received, consistently with the reimbursement rights set forth in
this Agreement, and shall remit such Servicer Reimbursement Amounts in
accordance with the documentation establishing the Advance Facility to such
Advancing Person or to a trustee, agent or custodian (each, an "Advance Facility
Trustee") designated by such Advancing Person. Notwithstanding the foregoing, if
so required pursuant to the terms of the Advance Facility, the Servicer may
direct the Securities Administrator to, and if so directed the Securities
Administrator is hereby authorized to and shall, pay to the Advancing Person or
the Advance Facility Trustee the Servicer Reimbursement Amounts identified
pursuant to the preceding sentence. Notwithstanding anything to the contrary
herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing
Advance Reimbursement Amounts be included in "Available Funds" or paid to
Noteholders. If the Servicer makes a remittance to the Securities Administrator
of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the
Servicer shall report to the Master Servicer and the Securities Administrator
the portions of such remittance that consist of Available Funds, Monthly Advance
Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively.
(b) If the Servicer enters into an Advance Facility and
elects to remit Servicer Reimbursement Amounts to the Securities Administrator,
the Servicer and the related Advancing Person shall deliver to the Securities
Administrator a written notice and payment instruction (an "Advance Facility
Notice"), providing the Securities Administrator with written payment
instructions as to where to remit Monthly Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Servicer Reimbursement Amount is included within the Advance Facility) on
subsequent Payment Dates. The payment instruction shall require the applicable
Servicer Reimbursement Amounts to be distributed to the Advancing Person or to
an Advance Facility Trustee designated in the Advance Facility Notice. An
Advance Facility Notice may only be terminated by the joint written direction of
the Servicer and the related Advancing Person (and any related Advance Facility
Trustee); PROVIDED, HOWEVER, that the provisions of this Section 3.20 shall
cease to be applicable when all Monthly Advances and Servicing Advances funded
by an Advancing Person, and when all Monthly Advances and Servicing Advances the
rights to be reimbursed for which have been assigned or pledged to an Advancing
Person, have been repaid to the related Advancing Person in full.
(c) Servicer Reimbursement Amounts shall consist solely
of amounts in respect of Monthly Advances and/or Servicing Advances made with
respect to the Mortgage Loans for which the Servicer would be permitted to
reimburse itself in accordance with Section 3.03(ii) or Section 3.03(vi) hereof,
assuming the Servicer had made the related Monthly Advance(s) and/or Servicing
Advance(s). Notwithstanding the foregoing, no Person shall be entitled to
reimbursement from funds held in the Collection Account for future distribution
to
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Noteholders pursuant to the provisions of Section 3.15. None of the Securities
Administrator, the Maseter Servicer or the Indenture Trustee shall have any duty
or liability with respect to the calculation of any Servicer Reimbursement
Amount and, if the Servicer has elected to remit Servicer Reimbursement Amounts
to the Securities Administrator, each of the Securities Administrator, the
Master Servicer and the Indenture Trustee shall be entitled to rely without
independent investigation on the Advance Facility Notice and on the Servicer's
report of the amount of Monthly Advance Reimbursement Amounts and Servicing
Advance Reimbursement Amounts that were included in the remittance from the
Servicer to the Securities Administrator pursuant to Section 3.03(i). The
Servicer shall maintain and provide to any Successor Servicer and (upon request)
the Master Servicer a detailed accounting on a loan-by-loan basis as to amounts
advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The
Successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the Successor Servicer shall not be liable for any
errors in such information. None of the Depositor, the Indenture Trustee, the
Master Servicer or the Securities Administrator shall, as a result of the
existence of any Advance Facility, have any additional duty or liability with
respect to the calculation or payment of any Servicer Reimbursement Amount, and
none of the Depositor, the Indenture Trustee, the Master Servicer or the
Securities Administrator shall, as a result of the existence of any Advance
Facility, have any additional responsibility to track or monitor the
administration of such Advance Facility or the payment of Servicer Reimbursement
Amounts to an Advancing Person.
(d) An Advancing Person who receives an assignment or
pledge of the rights to be reimbursed for Monthly Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of
Monthly Advances and/or Servicing Advances shall not be required to meet the
criteria for qualification of a Sub-Servicer set forth in Section 3.01 hereof.
(e) Servicer Reimbursement Amounts distributed with
respect to each Mortgage Loan shall be allocated to outstanding unreimbursed
Monthly Advances or Servicing Advances (as the case may be) made with respect to
that Mortgage Loan on a FIFO basis. The Servicer shall provide to the related
Advancing Person or Advance Facility Trustee loan-by-loan information with
respect to each Servicer Reimbursement Amount distributed by the Securities
Administrator to such Advancing Person or Advance Facility Trustee on each
Payment Date, to enable the Advancing Person or Advance Facility Trustee to make
the FIFO allocation of each Servicer Reimbursement Amount with respect to each
Mortgage Loan. The Servicer shall remain entitled to be reimbursed by the
Advancing Person or Advance Facility Trustee for all Monthly Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been assigned or pledged to an Advancing Person.
(f) Notwithstanding anything to the contrary in this
Agreement, none of the Master Servicer, the Securities Administrator or the
Indenture Trustee shall be responsible for tracking or monitoring Servicer
Reimbursement Amounts or any Advance Facility, and none of such parties shall be
obligated to make any payment with respect to any Servicer Reimbursement Amount.
The Servicer who enters into an Advance Facility shall indemnify the Indenture
Trustee, the Trust, the Master Servicer, the Securities Administrator and any
Successor Servicer for any loss, liability or damage resulting from any claim by
the related Advancing Person,
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except (i) in the case of the Indenture Trustee, the Securities Administrator,
the Master Servicer or the Trust, (A) resulting from any such claim which arises
by reason of such party's, as applicable, willful misfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of the such
party's reckless disregard of its obligations and duties hereunder or (B) any
such claim for which such party receives indemnification from the Servicer or a
Successor Servicer pursuant to Section 5.06(a), or (ii) in the case of a
Successor Servicer, which claim arises by reason of such Successor Servicer's
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder. Notwithstanding the foregoing, the exclusions set forth in clauses
(i) and (ii) above from the Servicer's obligation to indemnify the Indenture
Trustee, the Trust, the Master Servicer, the Securities Administrator and any
Successor Servicer shall not be applicable, in any case, to the extent the
applicable claim, loss, liability or damage was incurred by reason of the
Servicer's willful misfeasance, bad faith or negligence in the performance of
its duties hereunder or by reason of its reckless disregard of its obligations
and duties hereunder, or by reason of a breach of the Servicer's obligations and
duties under this Agreement.
(g) Notwithstanding anything to the contrary in this
Section 3.20, the Servicer shall consult with the Master Servicer in determining
the manner in which any Advance Facility shall affect a Successor Servicer
before the Servicer shall enter into an Advance Facility. Any amendment to this
Section 3.20 or to any other provision of this Agreement that may be necessary
or appropriate to effect the terms of an Advance Facility as described generally
in this Section 3.20, including amendments to add provisions relating to a
Successor Servicer, may be entered into by the parties hereto without the
consent of any Noteholder, notwithstanding anything to the contrary in this
Agreement, and provided that such Amendment otherwise complies with the terms
hereof. All reasonable costs and expenses (including attorneys' fees) of each
party hereto of any such amendment shall be borne solely by the Servicer. The
parties hereto hereby acknowledge and agree that: (i) the Monthly Advances
and/or Servicing Advances financed by and/or pledged to an Advancing Person
under any Advance Facility are obligations owed to the Servicer payable only
from the cash flows and proceeds received under this Agreement for reimbursement
of Monthly Advances and/or Servicing Advances only to the extent provided
herein, and the Indenture Trustee and the Trust are not, as a result of the
existence of any Advance Facility, obligated or liable to repay any Monthly
Advances and/or Servicing Advances financed by the Advancing Person; (ii) the
Servicer will be responsible for remitting to the Advancing Person the
applicable amounts collected by it as reimbursement for Monthly Advances and/or
Servicing Advances funded by the Advancing Person, subject to the provisions of
this Agreement and (iii) the Indenture Trustee, the Master Servicer and the
Securities Administrator shall not have any responsibility to track or monitor
the administration of the financing arrangement between the Servicer and any
Advancing Person.
Section 3.21. COVENANTS OF THE SERVICER REGARDING PREPAYMENT
CHARGES.
(a) The Servicer will not waive any Prepayment Charge or
part of a Prepayment Charge unless (i) such waiver would maximize recovery of
total proceeds taking into account the value of such Prepayment Charge and
related Mortgage Loan and doing so is standard and customary in servicing
similar Mortgage Loans (including any waiver of a Prepayment Charge in
connection with a refinancing of a Mortgage Loan that is related to a
29
default or a reasonably foreseeable default) and in no event will it waive a
Prepayment Charge in connection with a refinancing of a Mortgage Loan that is
not related to a default or a reasonably foreseeable default, or (ii) the
collection of the Prepayment Charge would be in violation of applicable laws or
regulations.
(b) Upon discovery by the Servicer, the Master Servicer
or a Responsible Officer of the Indenture Trustee or the Securities
Administrator of a breach of the foregoing, which materially and adversely
affects the Holders of any NIMs Notes, the party discovering such breach shall
give prompt written notice to the other parties. Within 60 days of the earlier
of discovery by the Servicer or the Master Servicer, or receipt of notice by the
Servicer or the Master Servicer, as applicable, of such breach, the Servicer
shall cure such breach in all material respects. If the covenant made by the
Servicer is breached the Servicer must pay into the Collection Account the
amount of the waived Prepayment Charge (less any amount previously collected and
paid by the Servicer into the Collection Account; provided, however, that the
Servicer shall not have an obligation to pay the amount of any uncollected
Prepayment Charge if the failure to collect such amount is the direct result of
inaccurate or incomplete information on the Prepayment Charge Schedule in effect
at such time).
Section 3.22. NON-SOLICITATION.
Neither the Master Servicer nor the Servicer shall take any
action or permit or cause any action to be taken by any of the Master Servicer's
or the Servicer's agents or affiliates, or by any independent contractors on the
Master Servicer's or the Servicer's behalf, to personally, by telephone, mail,
e-mail or other similar methods of communication, solicit any Mortgagor or
obligor under any of the Mortgage Loans to refinance a Mortgage Loan, in whole
or in part, without the prior written consent of the Seller, or any of its
successors or assigns. It is understood and agreed that promotions undertaken by
the Master Servicer or the Servicer which are directed to the general public at
large, or designated segments thereof, including without limitation mass
mailings based on commercially acquired mailing lists, newspaper, radio,
telephone and television advertisements shall not constitute solicitation under
this Section 3.22.
Section 3.23. REPORTS TO SECURITIES ADMINISTRATOR.
Not later than 1:00 p.m., New York time, on the 18th calendar
day of each month, or if such 18th day is not a Business Day, the immediately
preceding Business Day, the Servicer shall deliver to the Master Servicer (who
shall deliver to the Securities Administrator) by electronic means reasonably
acceptable to the Master Servicer, a computer file containing the loan level
information set forth in Exhibits D, E and F hereto necessary to permit the
Master Servicer to perform its obligations hereunder and the Securities
Administrator to calculate the information required by clauses (i) through (xxv)
of Section 7.05 of the Indenture as of the end of the preceding Prepayment
Period or Due Period, as applicable, and such other information as the Master
Servicer or the Securities Administrator shall reasonably require.
Section 3.24. REPORTS OF FORECLOSURES AND ABANDONMENTS OF
MORTGAGED PROPERTIES, RETURNS RELATING TO MORTGAGE INTEREST RECEIVED FROM
INDIVIDUALS AND RETURNS RELATING TO CANCELLATION OF INDEBTEDNESS.
30
The Servicer shall make reports of foreclosures and
abandonments of any Mortgaged Property for each year beginning in 2006. The
Servicer shall file reports relating to each instance occurring during the
previous calendar year in which the Servicer (i) on behalf of the Trust acquires
an interest in any Mortgaged Property through foreclosure or other comparable
conversion in full or partial satisfaction of a Mortgage Loan or (ii) knows or
has reason to know that any Mortgaged Property has been abandoned. The reports
from the Servicer shall be in form and substance sufficient to meet the
reporting requirements imposed by Sections 6050J, 6050H and 6050P of the Code.
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ARTICLE IV
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE
MASTER SERVICER
Section 4.01. MASTER SERVICER.
The Master Servicer shall supervise, monitor and oversee the
obligation of the Servicer to service and administer the Mortgage Loans in
accordance with the terms of the Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with the Servicer as necessary from time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by the Servicer and shall cause the Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by the
Servicer under this Agreement. The Master Servicer shall independently and
separately monitor the Servicer's servicing activities with respect to each
related Mortgage Loan, reconcile the results of such monitoring with such
information provided in the previous sentence on a monthly basis and coordinate
corrective adjustments to the Servicer's and Master Servicer's records. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring with
the actual remittances of the Servicer to the Payment Account pursuant to the
terms hereof based on information provided to the Master Servicer by the
Securities Administrator pursuant to the third paragraph of Section 6.01(j) of
the Indenture.
The Indenture Trustee shall provide access and shall cause the
Custodian to provide access and the Securities Administrator shall provide
access, in each case to the records and documentation in possession of the
Indenture Trustee, the Custodian or the Securities Administrator, as the case
may be, regarding the related Mortgage Loans and REO Property and the servicing
thereof to the Noteholders, the FDIC, and the supervisory agents and examiners
of the FDIC, such access being afforded only upon reasonable prior written
request and during normal business hours at the office of the Indenture Trustee,
the Custodian or the Securities Administrator; provided, however, that, unless
otherwise required by law, none of the Indenture Trustee, the Custodian or the
Securities Administrator shall be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Indenture Trustee shall allow representatives of the above
entities and shall cause the Custodian to allow representatives of the above
entities and the Securities Administrator shall allow representatives of the
above entities, in each case to photocopy any of the records and documentation
and shall provide equipment for that purpose at a charge that covers the
Indenture Trustee's, the Custodian's or the Securities Administrator's, as the
case may be, actual costs.
Section 4.02. RESERVED.
Section 4.03. MONITORING OF SERVICER.
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(a) The Master Servicer shall be responsible for
monitoring the compliance by the Servicer with its duties under this Agreement.
In the review of the Servicer's activities, the Master Servicer may rely upon an
Officer's Certificate of the Servicer with regard to the Servicer's compliance
with the terms of this Agreement. In the event that the Master Servicer, in its
judgment, determines that the Servicer should be terminated in accordance with
the terms hereof, or that a notice should be sent pursuant to the terms hereof
with respect to the occurrence of an event that, unless cured, would constitute
a Servicer Event of Default, the Master Servicer shall notify the Servicer, the
Seller and the Indenture Trustee thereof and the Master Servicer shall issue
such notice or take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Indenture
Trustee and the Noteholders, shall enforce the obligations of the Servicer under
this Agreement, and shall, in the event that the Servicer fails to perform its
obligations in accordance with this Agreement, subject to the preceding
paragraph, Article III and Article VI, cause the Indenture Trustee to terminate
the rights and obligations of the Servicer hereunder in accordance with the
provisions of Article VI. Such enforcement, including, without limitation, the
legal prosecution of claims and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans; provided that the Master Servicer shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer shall have received reasonable indemnity for its costs and
expenses in pursuing such action.
(c) The Master Servicer shall be entitled to be
reimbursed by the Servicer (or from amounts on deposit in the Payment Account if
the Servicer does not timely fulfill its obligations hereunder) for all
reasonable out-of-pocket or third party costs associated with the transfer of
servicing from the predecessor Servicer (or if the predecessor Servicer is the
Master Servicer, from the Servicer immediately preceding the Master Servicer),
including without limitation, any reasonable out-of-pocket or third party costs
or expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Master Servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the Master Servicer to service the Mortgage Loans
properly and effectively, upon presentation of reasonable documentation of such
costs and expenses.
(d) The Master Servicer shall require the Servicer to
comply with the remittance requirements and other obligations set forth in this
Agreement.
(e) If the Master Servicer acts as successor Servicer, it
will not assume liability for the representations and warranties of the
terminated Servicer.
(f) The Master Servicer shall not be liable for any acts
or omissions of the Servicer.
Section 4.04. FIDELITY BOND.
The Master Servicer, at its expense, shall maintain in effect
a blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all
33
directors, officers, employees and other Persons acting on such Master
Servicer's behalf, and covering errors and omissions in the performance of the
Master Servicer's obligations hereunder. The errors and omissions insurance
policy and the fidelity bond shall be in such form and amount generally
acceptable for entities serving as master servicers or trustees. Upon reasonable
request of the Depositor, the Master Servicer shall provide to the Depositor
evidence of such insurance or fidelity bond.
Section 4.05. POWER TO ACT; PROCEDURES.
The Master Servicer shall master service the Mortgage Loans
and shall have full power and authority to do any and all things that it may
deem necessary or desirable in connection with the master servicing and
administration of the Mortgage Loans, including but not limited to the power and
authority (i) to execute and deliver, on behalf of the Noteholders and the
Indenture Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property. The Indenture
Trustee shall furnish the Master Servicer, upon written request from a Master
Servicing Officer, with any powers of attorney empowering the Master Servicer or
the Servicer to execute and deliver instruments of satisfaction or cancellation,
or of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with this Agreement, and the Indenture Trustee shall execute and deliver such
other documents, as the Master Servicer or the Servicer may request, to enable
the Master Servicer to master service and administer the Mortgage Loans and
carry out its duties hereunder, in each case in accordance with Accepted Master
Servicing Practices (and the Indenture Trustee shall have no liability for
misuse of any such powers of attorney by the Master Servicer or the Servicer and
shall be indemnified by the Master Servicer or the Servicer, as applicable, for
any cost, liability or expense incurred by the Indenture Trustee in connection
with such Person's use or misuse of any such power of attorney). If the Master
Servicer or the Indenture Trustee has been advised that it is likely that the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Indenture Trustee or that the Indenture Trustee would be
adversely affected under the "doing business" or tax laws of such state if such
action is taken in its name, the Master Servicer shall join with the Indenture
Trustee in the appointment of a co-trustee pursuant to Section 6.10 of the
Indenture. In the performance of its duties hereunder, the Master Servicer shall
be an independent contractor and shall not, except in those instances where it
is taking action in the name of the Indenture Trustee, be deemed to be the agent
of the Indenture Trustee.
Section 4.06. DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
To the extent Mortgage Loans contain enforceable due-on-sale
clauses, the Master Servicer shall cause the Servicer to enforce such clauses in
accordance with this Agreement.
Section 4.07. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR TRUSTEE.
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(a) The Master Servicer shall transmit to the Indenture
Trustee or Custodian such documents and instruments coming into the possession
of the Master Servicer from time to time as are required by the terms hereof to
be delivered to the Indenture Trustee or Custodian. Any funds received by the
Master Servicer in respect of any Mortgage Loan or which otherwise are collected
by the Master Servicer as Liquidation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan shall be remitted to the Securities Administrator for
deposit in the Payment Account. The Master Servicer shall, and, subject to
Section 3.11, shall cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Indenture Trustee, its agents
and accountants at any time upon reasonable request and during normal business
hours, and to Noteholders that are savings and loan associations, banks or
insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be remitted to the Securities Administrator for
deposit in the Payment Account.
Section 4.08. POSSESSION OF CERTAIN INSURANCE POLICIES AND
DOCUMENTS.
The Indenture Trustee or the applicable Custodian, shall
retain possession and custody of the originals (to the extent available) of any
primary mortgage insurance policies, or certificate of insurance if applicable,
and any Notes of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts payable in respect of the
Notes has been paid in full and the Master Servicer and the Servicer have
otherwise fulfilled their respective obligations under this Agreement, the
Indenture Trustee or the Custodian shall also retain possession and custody of
each Mortgage File in accordance with and subject to the terms and conditions of
this Agreement. The Master Servicer shall promptly deliver or cause to be
delivered to the Indenture Trustee or the Custodian, upon the execution or
receipt thereof the originals of any primary mortgage insurance policies, any
Notes of renewal, and such other documents or instruments related to the
Mortgage Loans that come into the possession of the Master Servicer from time to
time.
Section 4.09. COMPENSATION FOR THE MASTER SERVICER.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Master Servicing Fee,
payable to the Master Servicer on each Payment Date (with respect to the
calendar month that immediately preceded the month of such Payment Date) from
funds in the Payment Account. The Master Servicing Fee payable to the Master
Servicer in respect of any Payment Date shall be reduced in accordance with
Section 4.12. The Master Servicer shall be required to pay all expenses incurred
by it in connection with
35
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
Section 4.10. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer will deliver to the Seller, the
Indenture Trustee, the Securities Administrator and the Rating Agencies, on or
before March 15th of each year, beginning with delivery on March 15, 2006, an
Officer's Certificate certifying that with respect to the period ending December
31st of the prior year: (i) such Master Servicing Officer has reviewed the
activities of the Master Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement, (ii) to the best of such
Master Servicing Officer's knowledge, based on such review, the Master Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Master Servicing Officer
and the nature and status thereof, (iii) nothing has come to the attention of
such Master Servicing Officer to lead such Master Servicing Officer to believe
that the Master Servicer has failed to perform any of its duties,
responsibilities and obligations under this Agreement in all material respects
throughout such year, or, if there has been a material default in the
performance or fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Master Servicing Officer and the
nature and status thereof.
(b) Copies of such statements shall be provided to any
Noteholder upon request, by the Master Servicer or by the Securities
Administrator at the Master Servicer's expense if the Master Servicer failed to
provide such copies (unless (i) the Master Servicer shall have failed to provide
the Securities Administrator with such statement or (ii) the Securities
Administrator shall be unaware of the Master Servicer's failure to provide such
statement).
Section 4.11. ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING
REPORT.
Not later than March 15th of each year, beginning with the
letter due March 15, 2006, if the Master Servicer has, during the course of any
calendar year, directly serviced any of the Mortgage Loans, then the Master
Servicer at its expense shall cause a nationally recognized firm of independent
certified public accountants to furnish a statement to the Indenture Trustee,
the Securities Administrator, the Rating Agencies and the Seller to the effect
that, with respect to the most recently ended fiscal year, such firm has
examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac
requires it to report. Copies of such statements shall be provided to any
Noteholder upon request by the Master Servicer, or by the
36
Securities Administrator at the expense of the Master Servicer if the Master
Servicer shall fail to provide such copies. If such report discloses exceptions
that are material, the Master Servicer shall advise the Indenture Trustee and
the Securities Administrator whether such exceptions have been or are
susceptible of cure, and will take prompt action to do so.
Section 4.12. OBLIGATION OF THE MASTER SERVICER IN RESPECT OF
PREPAYMENT INTEREST SHORTFALLS.
In the event that the Servicer fails to perform on any
Determination Date its obligations pursuant to Section 3.14, the Master Servicer
shall remit to the Securities Administrator not later than the Payment Date an
amount equal to the lesser of (i) the aggregate amounts required to be paid by
the Servicer with respect to Prepayment Interest Shortfalls attributable to
Principal Prepayments on the related Mortgage Loans for the related Payment
Date, and not so paid by the Servicer and (ii) the Master Servicing Fee for such
Payment Date, without reimbursement therefor.
Section 4.13. MONTHLY ADVANCES BY THE MASTER SERVICER.
If the Servicer fails to remit any Monthly Advance required to
be made pursuant to Section 3.15, the Master Servicer shall itself make, or
shall cause the Successor Servicer to make, such Advance. If the Master Servicer
determines that a Monthly Advance is required, it shall on the Business Day
preceding the related Payment Date immediately following such Determination Date
remit to the Securities Administrator from its own funds (or funds advanced by
the applicable Servicer) for deposit in the Payment Account immediately
available funds in an amount equal to such Monthly Advance. The Master Servicer
shall be entitled to be reimbursed for all Monthly Advances made by it.
Notwithstanding anything to the contrary herein, in the event the Master
Servicer determines in its reasonable judgment that a Monthly Advance is a
Nonrecoverable Advance, the Master Servicer shall be under no obligation to make
such Monthly Advance. If the Master Servicer determines that a Monthly Advance
is a Nonrecoverable Advance, it shall, on or prior to the related Payment Date,
deliver an Officer's Certificate to the Indenture Trustee and the Securities
Administrator to such effect.
Section 4.14. MERGER OR CONSOLIDATION.
Any Person into which the Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which the Master Servicer shall be a party, or any
Person succeeding to the business of the Master Servicer, shall be the successor
to the Master Servicer hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; PROVIDED, HOWEVER, that the successor or resulting
Person to the Master Servicer or its Affiliate whose primary business is the
servicing of conventional residential mortgage loans shall be a Person that is
an Approved Servicer.
Section 4.15. RESIGNATION OF MASTER SERVICER.
Except as otherwise provided in Sections 4.14 and 4.16 hereof,
the Master Servicer shall not resign from the obligations and duties hereby
imposed on it unless the Master
37
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an independent Opinion
of Counsel to such effect delivered to the Issuer, the Depositor, the Seller and
the Indenture Trustee. No such resignation shall become effective until the
Indenture Trustee shall have assumed, or a Successor Master Servicer shall have
been appointed by the Indenture Trustee and until such successor shall have
assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Indenture Trustee.
If, at any time, the Master Servicer resigns under this
Section 4.15, or transfers or assigns its rights and obligations under Section
4.16, or is removed as Master Servicer pursuant to Section 6.03, then at such
time Xxxxx Fargo Bank, N.A. also shall resign (and shall be entitled to resign)
as Securities Administrator, Paying Agent and Note Registrar. In such event, the
obligations of each such party shall be assumed by the Indenture Trustee or such
Successor Master Servicer appointed by the Indenture Trustee (subject to the
provisions of Section 6.04).
Section 4.16. ASSIGNMENT OR DELEGATION OF DUTIES BY THE MASTER
SERVICER.
Except as expressly provided herein, the Master Servicer shall
not assign or transfer any of its rights, benefits or privileges hereunder to
any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; PROVIDED, HOWEVER, that the Master
Servicer shall have the right with the prior written consent of the Indenture
Trustee and the Seller (which consent shall not be unreasonably withheld), and
upon delivery to the Indenture Trustee and the Seller of a letter from each
Rating Agency to the effect that such action shall not result in a downgrading
of the Notes, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Seller and the Indenture Trustee. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a Successor Master
Servicer, the entire amount of the Master Servicing Fees and other compensation
payable to the Master Servicer pursuant hereto shall thereafter be payable to
such Successor Master Servicer. Such Successor Master Servicer shall also pay
the fees of the Indenture Trustee and the Securities Administrator, as provided
herein.
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ARTICLE V
THE MASTER SERVICER AND THE SERVICER
Section 5.01. LIABILITY OF THE MASTER SERVICER AND THE
SERVICER.
The Master Servicer and the Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Master Servicer or Servicer, as the case may be,
herein.
Section 5.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER.
Any corporation into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any corporation
succeeding to the business of the Servicer, shall be the successor of the
Servicer hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, HOWEVER, that the Successor Servicer shall satisfy
all the requirements of Section 6.02 with respect to the qualifications of a
Successor Servicer.
Section 5.03. LIMITATION ON LIABILITY OF THE SERVICER, THE
MASTER SERVICER AND OTHERS.
Neither the Master Servicer, the Servicer nor any of the
directors or officers or employees or agents of the Master Servicer or the
Servicer shall be under any liability to the Trust or the Noteholders for any
action taken or for refraining from the taking of any action by the Servicer or
the Master Servicer in good faith pursuant to this Agreement, or for errors in
judgment; PROVIDED, HOWEVER, that this provision shall not protect the Master
Servicer or the Servicer or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Master Servicer or the Servicer
or by reason of its reckless disregard of its obligations and duties of the
Master Servicer or the Servicer hereunder. The Master Servicer or the Servicer
and any director or officer or employee or agent of the Master Servicer or the
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 Servicer and any director or officer or employee or agent of the Servicer
shall be indemnified by the Trust and held harmless against any loss, liability
or expense incurred in connection with any legal action relating to this
Agreement or the Notes, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement or results
from a breach of representation by the Servicer) and any loss, liability or
expense incurred by reason of its willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder. The Master Servicer shall be indemnified by
the Issuer pursuant to Section 6.07 of the Indenture.
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The Master Servicer or the Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties hereunder and that in its opinion, may involve it in
any expense or liability; provided, however, that the Servicer and the Master
Servicer may undertake any such action which it may deem necessary or desirable
in respect of this Agreement, and the rights and duties of the parties hereto
and the interests of the Noteholders hereunder. In such event, the reasonable
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust. The Servicer's right to
indemnity or reimbursement pursuant to this Section 5.03 shall survive any
resignation or termination of the Servicer pursuant to Section 5.04 or 6.01 with
respect to any losses, expenses, costs or liabilities arising prior to such
resignation or termination (or arising from events that occurred prior to such
resignation or termination). The Master Servicer's right to indemnity or
reimbursement pursuant to this Section 5.03 shall survive any resignation or
termination of the Master Servicer pursuant to Section 4.15 or 6.03 with respect
to any losses, expenses, costs or liabilities arising prior to such resignation
or termination (or arising from events that occurred prior to such resignation
or termination).
Section 5.04. SERVICER NOT TO RESIGN; PLEDGE OF SERVICING
RIGHTS.
Subject to the provisions of Section 5.02, the Servicer shall
not resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it or its subsidiaries or
Affiliates, the other activities of the Servicer so causing such a conflict
being of a type and nature carried on by the Servicer or its subsidiaries or
Affiliates at the date of this Agreement or (ii) upon the proposal by the
Servicer or the Servicing Rights Owner of an Approved Servicer to the Seller,
the Depositor and the Master Servicer in writing; PROVIDED, HOWEVER, that no
such resignation by the Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Master Servicer as Successor Servicer
shall have assumed the Servicer's responsibilities and obligations hereunder or
the Master Servicer shall have designated a successor servicer in accordance
with Section 6.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 6.01 and 6.02 as
obligations that survive the resignation or termination of the Servicer. Any
such determination permitting the resignation of the Servicer pursuant to clause
(i) above shall be evidenced by an Opinion of Counsel to such effect delivered
to the Seller, the Depositor, the Master Servicer, the Securities Administrator
and the Indenture Trustee.
Notwithstanding the foregoing, on or after the Closing Date,
the Servicer or the Servicing Rights Owner may pledge and assign all of its
right, title and interest in, to and under this Agreement to one or more lenders
("Servicing Rights Pledgees") selected by the Servicer or the Servicing Rights
Owner. Provided that no Servicer Event of Default exists, the Indenture Trustee
and the Master Servicer agree that upon delivery to the Indenture Trustee and
the Master Servicer by a Servicing Rights Pledgee of a letter signed by the
Servicer whereunder the Servicer resigns as servicer under this Agreement
pursuant to this Section 5.04, the Master Servicer shall appoint such Servicing
Rights Pledgee or its designee as Successor Servicer, provided that at the time
of such appointment, such Servicing Rights Pledgee or its designee is an
Approved Servicer
40
and that such Servicing Rights Pledgee or its designee agrees to be subject to
the terms of this Agreement.
Section 5.05. DELEGATION OF DUTIES.
In the ordinary course of business, the Servicer at any time
may delegate any of its duties hereunder to any Person, including any of its
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those set forth in Section 3.01. Such delegation shall not relieve
the Servicer of its liabilities and responsibilities with respect to such duties
and shall not constitute a resignation within the meaning of Section 5.04. The
Servicer shall provide the Indenture Trustee, the Master Servicer and the
Securities Administrator with written notice prior to the delegation of any of
its duties to any Person other than any of the Servicer's Affiliates or their
respective successors and assigns.
Section 5.06. INDEMNIFICATION OF THE TRUST BY THE SERVICER AND
THE MASTER SERVICER.
(a) The Servicer shall indemnify and hold harmless the
Trust, the Master Servicer, the Securities Administrator and the Indenture
Trustee from and against any loss, liability, expense, damage or injury suffered
or sustained by reason of the Servicer's willful misfeasance, bad faith or
negligence in the performance of its activities in servicing or administering
the Mortgage Loans pursuant to this Agreement, including, but not limited to,
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim related to the Servicer's misfeasance, bad faith or
negligence. Any such indemnification shall not be payable from the assets of the
Trust. The provisions of this Section 5.06(a) shall survive the termination of
this Agreement.
(b) If the Servicer fails to make when due (without
regard to any cure period) any Monthly Advance or deposit required by it
hereunder, the Servicer shall pay the Securities Administrator for the account
of the Securities Administrator interest at the prime rate from the date on
which such payment was due (without regard to any cure period) to and including
the date on which the Servicer makes such payment.
(c) The Master Servicer shall indemnify and hold harmless
the Trust, the Securities Administrator, the Servicer and the Indenture Trustee
from and against any loss, liability, expense, damage or injury suffered or
sustained by reason of the Master Servicer's willful misfeasance, bad faith or
negligence in the performance of its activities in master servicing or
administering the Mortgage Loans pursuant to this Agreement, including, but not
limited to, any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim related to the Master Servicer's
misfeasance, bad faith or negligence. Any such indemnification shall not be
payable from the assets of the Trust. The provisions of this Section 5.06(c)
shall survive the termination of this Agreement.
(d) If the Master Servicer fails to make when due
(without regard to any cure period) any Monthly Advance or deposit required by
it hereunder, the Master Servicer shall pay
41
the Securities Administrator for the account of the Securities Administrator
interest at the prime rate from the date on which such payment was due (without
regard to any cure period) to and including the date on which the Master
Servicer makes such payment.
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ARTICLE VI
DEFAULT
Section 6.01. SERVICER EVENTS OF DEFAULT.
(a) If any one of the following events ("Servicer Events
of Default") shall occur and be continuing:
(i) (A) The failure by the Servicer to make any Monthly
Advance which continues unremedied for a period of one (1) Business Day
after it was due; (B) any other failure by the Servicer to deposit in
the Collection Account or the Payment Account any deposit required to
be made under the terms of this Agreement which continues unremedied
for a period of two (2) Business Days after such deposit was due or (C)
the failure by the Servicer to make any remittances into the Payment
Account required pursuant to Section 3.03(i) which continues unremedied
for a period of one (1) Business Day after it was due;
(ii) (A) The failure by the Servicer to make any required
Servicing Advance which failure continues unremedied for a period of
sixty (60) days, or (B) the failure by the Servicer duly to observe or
perform, in any material respect, any other covenants, obligations or
agreements of the Servicer as set forth in this Agreement, which
failure materially and adversely affects the interests of the
Noteholders, continues unremedied for a period of sixty (60) days,
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the
Master Servicer, the Securities Administrator or the Indenture Trustee
or to the Servicer and the Master Servicer, the Securities
Administrator or the Indenture Trustee, by the Holders of not less than
25% of the aggregate Note Balance of the Notes; PROVIDED, HOWEVER, that
in the case of a failure that cannot be cured within sixty (60) days,
the cure period may be extended if the Servicer can demonstrate to the
reasonable satisfaction of the Master Servicer, the Securities
Administrator, the Indenture Trustee and the Seller that the Servicer
is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for
a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator or receiver or liquidator
or similar person in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its property,
or a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities
43
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer; or the 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
bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(v) the Servicer Termination Test is failed; or
(vi) (a) any reduction or withdrawal of the ratings or any
shadow ratings of any Class of Notes attributable principally to the
Servicer or the servicing of the Mortgage Loans or (b) any placement by
a Rating Agency of any Class of Notes on credit watch with negative
implications attributable principally to the Servicer or the servicing
of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the
Servicer as a servicer of subprime mortgage loans by one or more of the
Rating Agencies that maintains a servicer rating system and a rating on
the Notes to "below average" or below; or
(viii) the failure by the Servicer to duly perform, within
the required time period, its obligation to provide the annual
statement of compliance described under Section 3.09, the accountant's
report described under Section 3.10 or the certification described
under Section 3.13(e), which failure continues unremedied for a period
of ten days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the Master Servicer;
(ix) the failure by the Servicer to provide, within the
time frame specified herein, any required reports or data pertaining to
the Mortgage Loans, which failure continues unremedied for a period of
fifteen days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the Master Servicer; or
(x) the identification under any filing pursuant to
Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 which identifies material
weaknesses in connection with the Servicer's ongoing evaluation of
internal controls which materially and adversely affect the Servicer's
ability to perform any of its duties under this Agreement.
(b) then, and in each and every such case, so long as a
Servicer Event of Default shall not have been remedied, (x) with respect solely
to clause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of
written notice or discovery by the Master Servicer or a Responsible Officer of
the Indenture Trustee or of the Securities Administrator of such failure, the
Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New
York time on such Deposit Date) of the failure to make a Monthly Advance to a
Servicing Officer of the Servicer and, to the extent the applicable current
contact information has been provided to the Master Servicer, the Servicing
Rights Pledgee and (2) on the Business Day immediately following the related
Deposit Date, upon receipt of written notice or discovery by the Master Servicer
or a Responsible Officer of the Indenture Trustee or of the Securities
Administrator of the continued failure to make such Monthly Advance, the Master
Servicer shall give immediate
44
telephonic notice of such failure to a Servicing Officer of the Servicer and the
Master Servicer shall direct the Indenture Trustee to terminate all of the
rights and obligations of the Servicer under this Agreement and the Successor
Servicer appointed in accordance with Section 6.02 shall immediately make such
Monthly Advance prior to the distribution of funds on the related Payment Date
and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y)
in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and
shall at the direction of the Holders of not less than 51% of the aggregate Note
Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x)
above, the Indenture Trustee shall, at the direction of the Holders of not less
than 51% of the aggregate Note Balance of the Notes by notice then given in
writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights
Pledgee (to the extent the applicable current contact information has been
provided to the Master Servicer), the Rating Agencies and if given by Holders of
Notes, to the Indenture Trustee, terminate all of the rights and obligations of
the Servicer as servicer under this Agreement. On or after receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes or the Mortgage Loans or
otherwise, shall pass to and be vested in the Successor Servicer pursuant to and
under this Section 6.01; and, without limitation, the Successor Servicer is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of each Mortgage Loan and related
documents, or otherwise. The Servicer agrees to cooperate with the Successor
Servicer, the Master Servicer, the Securities Administrator and the Indenture
Trustee in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the transfer to the Successor
Servicer for the administration by it of all cash amounts that shall at the time
be held by the predecessor Servicer and to be deposited by it in the Collection
Account, or that have been deposited by the predecessor Servicer in the
Collection Account or thereafter received by the predecessor Servicer with
respect to the Mortgage Loans. All Servicing Transfer Costs and other reasonable
out-of-pocket costs and expenses (including attorneys' fees) incurred in
connection with transferring the Mortgage Files to the Successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to this
Section 6.01 shall be paid by the predecessor Servicer within 90 days of written
demand, itemized in reasonable detail, or, to the extent not paid by the
predecessor Servicer, by the Trust prior to payments to Noteholders (or, if the
predecessor Servicer is the Master Servicer, by the initial Servicer), upon
presentation of reasonable documentation of such costs and expenses. If the
predecessor Servicer is required but fails to pay the amounts specified in the
preceding sentence and such amounts are paid by the Trust, the Securities
Administrator shall, at the direction and expense of the Certificateholders,
take appropriate action to enforce such obligation and recover such amounts on
behalf of such Certificateholders.
Notwithstanding any termination of the activities of the
Servicer hereunder, the Servicer shall continue to be entitled to receive from
the Trust, payment of all the accrued and unpaid portion of the Servicing Fees
to which the Servicer would have been entitled and reimbursement for all
outstanding Monthly Advances and Servicing Advances, including but not limited
to trailing expenses representing Servicing Advances incurred by the Servicer
prior to but invoiced after the date of termination, which amount shall be
remitted by the Successor Servicer to the terminated Servicer as permitted under
Section 3.03 on a first-in, first-out basis. The
45
Servicer shall continue to be entitled to the benefits of Section 5.03,
notwithstanding any termination hereunder, with respect to events occurring
prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default,
the Servicer shall act as Servicer under this Agreement, subject to the right of
removal set forth in subsection (b) hereof, for an initial period commencing on
the date on which such Servicer Event of Default occurred and ending on the last
day of the calendar quarter in which such Servicer Event of Default occurred,
which period may be extended by the Master Servicer (an "Extension Notice") for
a succeeding quarterly period ending on December 31, March 31, June 30 and
September 30 of each year (each such quarterly period for which the Servicer
shall be designated to act as Servicer hereunder, a "Servicer Term of Service")
until such time as the Master Servicer, the Securities Administrator and the
Indenture Trustee receives written direction from the Holders of not less than
51% of the aggregate Note Balance of the Notes not to deliver an Extension
Notice, in which event the Master Servicer shall follow such direction; provided
that nothing in this clause (c) shall prohibit the Master Servicer from removing
(or prohibit Noteholders from directing the Indenture Trustee or the Securities
Administrator to direct the Master Servicer to remove) the Servicer pursuant to
clause (b) above. In the event the Master Servicer fails to deliver an Extension
Notice prior to the end of any Servicer Term of Service, the Servicer shall be
automatically terminated.
(d) If the Successor Servicer or another Person succeeds
to the obligations of Servicer hereunder, the term of the Successor Servicer or
such Person shall not be limited unless and until a Servicer Event of Default
thereafter occurs with respect to such Successor Servicer or other Person. At
such time, the provisions of Section 6.01(c) and (d) shall become applicable to
the then-acting Servicer and the Person then-obligated to succeed such
then-acting Servicer.
Section 6.02. APPOINTMENT OF SUCCESSOR SERVICER.
(a) The Issuer and the Indenture Trustee hereby appoint,
and Xxxxx Fargo Bank, N.A., hereby accepts appointment, on behalf of itself or
an affiliate, subject to the provisions of Section 5.04 hereof, upon receipt by
the Servicer of a notice of termination pursuant to Section 6.01 or upon
resignation of the Servicer pursuant to Section 5.04(i), to be the successor
(the "Successor Servicer") in all respects to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof
arising on and after its succession; PROVIDED, HOWEVER, that, without affecting
the immediate termination of the rights of the Servicer hereunder, it is
understood and acknowledged by the parties hereto that there will be a period of
transition not to exceed 100 days (the "Servicer Transition Period") after
receipt by the Servicer of a notice of termination before the servicing transfer
is fully effected.
During the Servicer Transition Period, none of the Successor
Servicer, the Securities Administrator nor the Indenture Trustee shall be
responsible for the lack of information and documents that it cannot reasonably
obtain on a practicable basis under the circumstances.
46
As compensation therefor, the Successor Servicer shall be
entitled to such compensation as the Servicer would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding the
above, if the Successor Servicer is unwilling or legally unable to act as
successor servicer, the Master Servicer may appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer that is an
Approved Servicer as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder; PROVIDED that the appointment of any such Successor Servicer
will not result in the qualification, reduction or withdrawal of the ratings
assigned to the Offered Notes by the Rating Agencies. Pending appointment of a
successor to the Servicer hereunder, unless the Successor Servicer is prohibited
by law from so acting, the Successor Servicer shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on the
Mortgage Loans in an amount equal to the compensation which the Servicer would
otherwise have received pursuant to Section 3.08 (or such lesser compensation as
the Master Servicer and such successor shall agree). The appointment of a
Successor Servicer shall not affect any liability of the predecessor Servicer
which may have arisen under this Agreement prior to its termination as Servicer
to pay any deductible under an insurance policy pursuant to Section 3.05 or to
indemnify the Indenture Trustee, the Master Servicer and the Securities
Administrator pursuant to Section 5.06, nor shall any Successor Servicer be
liable for any acts or omissions of the predecessor Servicer or for any breach
by such Servicer of any of its representations or warranties contained herein or
in any related document or agreement. The Indenture Trustee, the Master
Servicer, the Securities Administrator or a Successor Servicer shall have no
responsibility or obligation (i) to repurchase or substitute for any of the
Mortgage Loans or (ii) for any acts or omissions of a predecessor Servicer
during the Servicer Transition Period. The Indenture Trustee, the Master
Servicer, the Securities Administrator and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
Notwithstanding the foregoing, if a Servicer Event of Default
occurs, the Servicer, the Servicing Rights Owner or the Servicing Rights Pledgee
shall have a period of up to twenty (20) days after receipt of a notice of
termination to appoint an Approved Servicer as Successor Servicer. Such right of
appointment shall terminate immediately, however, if such terminated Servicer,
the Servicing Rights Owner or the Servicing Rights Pledgee fails to make any
required Monthly Advance, Servicing Advance or any other deposit required to be
made pursuant to the terms of this Agreement, as and when required by this
Agreement (taking into account any applicable cure period). All costs and
expenses associated with the appointment, whether or not consummated, and the
subsequent transfer of servicing (which must be completed within 100 days after
receipt by the Servicer of a notice of termination) are required to be paid by
the terminated Servicer, the Servicing Rights Owner or the Servicing Rights
Pledgee out of the proceeds of sale or otherwise. Any proceeds remaining after
such costs and expenses have been paid for by the terminated Servicer, shall be
the property of the terminated Servicer, the Servicing Rights Owner or the
Servicing Rights Pledgee, as applicable.
(b) Any successor, including the Successor Servicer, to
the Servicer as servicer shall during the term of its service as servicer (i)
continue to service and administer the
47
Mortgage Loans for the benefit of Noteholders in accordance with all of the
terms and provisions hereof and (ii) maintain in force a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Servicer hereunder and a fidelity bond in respect of its officers, employees and
agents to the same extent as the Servicer is so required pursuant to Section
3.12.
(c) In connection with the termination or resignation of
the Servicer hereunder, either (i) the Successor Servicer, including the Master
Servicer if the Master Servicer is acting as Successor Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, or (ii) the predecessor Servicer, at its sole expense, shall cooperate
with the Successor Servicer either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Indenture Trustee and to execute and deliver such other notices, documents
and other instruments as may be necessary or desirable to effect a transfer of
such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to
the Successor Servicer or (y) in causing MERS to designate on the MERS(R) System
the Successor Servicer as the servicer of such Mortgage Loan (at the cost and
expense of the Successor Servicer to the extent such costs relate to the
qualification of such Successor Servicer as a member of MERS, otherwise at the
cost and expense of the predecessor Servicer). The predecessor Servicer shall
file or cause to be filed any such assignment in the appropriate recording
office. The Successor Servicer shall cause such assignment to be delivered to
the Indenture Trustee promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Section 6.03. MASTER SERVICER EVENTS OF DEFAULT.
(a) If any one of the following events ("Master Servicer
Events of Default") shall occur and be continuing:
(i) Any failure by the Master Servicer to furnish the
Securities Administrator the Mortgage Loan data sufficient to prepare
the reports described in Section 7.05 of the Indenture which continues
unremedied for a period of one Business Day after the date upon which
written notice of such failure shall have been given to such Master
Servicer by the Indenture Trustee or the Securities Administrator or to
such Master Servicer, the Securities Administrator and the Indenture
Trustee by the Holders of not less than 25% of the aggregate Note
Balance of the Notes; or
(ii) Any failure on the part of the Master Servicer duly
to observe or perform in any material respect any other of the
covenants or agreements (other than those referred to in clauses (viii)
and (ix) below) on the part of the Master Servicer contained in this
Agreement which continues unremedied for a period of thirty (30) days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer by
the Indenture Trustee or the Securities Administrator, or to the Master
Servicer, the Securities Administrator and the Indenture Trustee by the
Holders of not less than 25% of the aggregate Note Balance of the
Notes; or
48
(iii) 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,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
days or any Rating Agency reduces or withdraws or threatens to reduce
or withdraw the rating of the Notes because of the financial condition
or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, voluntary
liquidation or similar proceedings of or relating to the Master
Servicer or of or relating to all or substantially all of its property;
or
(v) The Master 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
(vi) The Master Servicer shall be dissolved, or shall
dispose of all or substantially all of its assets, or consolidate with
or merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does not
meet the criteria for a Successor Master Servicer as specified in
Section 6.04 hereof; or
(vii) If a representation or warranty set forth in Section
2.01(b) hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Noteholders, and the circumstance or condition in respect of which such
representation or warranty was incorrect shall not have been eliminated
or cured within 30 days after the date on which written notice of such
incorrect representation or warranty shall have been given to the
Master Servicer by the Indenture Trustee or the Securities
Administrator, or to the Master Servicer, the Securities Administrator
and the Indenture Trustee by the Holders of not less than 25% of the
aggregate Note Balance of the Notes; or
(viii) A sale or pledge of any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master Servicer
hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Indenture
Trustee and the Holders of not less than 50% of the aggregate Note
Balance of the Notes; or
(ix) After receipt of notice from the Indenture Trustee,
any failure of the Master Servicer to make any Monthly Advances when
such Monthly Advances are due, as required to be made hereunder.
(b) then, and in each and every such case, so long as a
Master Servicer Event of Default shall not have been remedied, (x) with respect
solely to clause (ix) above, upon receipt
49
of written notice or discovery by a Responsible Officer of the Indenture Trustee
or of the Securities Administrator of such failure, the Indenture Trustee shall
give immediate telephonic notice of such failure to a Master Servicing Officer
of the Master Servicer and the Indenture Trustee shall terminate all of the
rights and obligations of the Master Servicer under this Agreement and the
Successor Master Servicer appointed in accordance with Section 6.02 shall
immediately make such Monthly Advance prior to the payment of funds on the
related Pyament Date and assume, pursuant to Section 6.04, the duties of a
Successor Servicer and (y) in the case of clauses (i), (ii), (iii), (iv), (v),
(vi), (vii) and (viii) above, the Indenture Trustee shall, at the direction of
the Holders of not less than 51% of the aggregate Note Balance of the Notes by
notice then given in writing to the Master Servicer (and to the Indenture
Trustee if given by Holders of Notes), terminate all of the rights and
obligations of the Master Servicer as servicer under this Agreement. Any such
notice to the Master Servicer shall also be given to each Rating Agency and the
Seller. On or after receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Notes or the Mortgage Loans or otherwise, shall pass to and be
vested in the Successor Master Servicer pursuant to and under this Section 6.03;
and, without limitation, the Successor Master Servicer is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of each Mortgage Loan and related documents, or otherwise. The
Master Servicer agrees to cooperate with the Successor Master Servicer, the
Servicer, the Securities Administrator and the Indenture Trustee in effecting
the termination of the responsibilities and rights of the Master Servicer
hereunder. All Servicing Transfer Costs and other reasonable out-of-pocket costs
and expenses (including attorneys' fees) incurred in connection with
transferring any Mortgage Files to the Successor Master Servicer and amending
this Agreement to reflect such succession as Master Servicer pursuant to this
Section 6.03 shall be paid by the predecessor Master Servicer within 90 days of
written demand, itemized in reasonable detail, or, to the extent not paid by the
predecessor Master Servicer, by the Trust prior to payments to Noteholders (or,
if the predecessor Master Servicer is the Indenture Trustee, by the initial
Master Servicer), upon presentation of reasonable documentation of such costs
and expenses. If the predecessor Master Servicer is required but fails to pay
the amounts specified in the preceding sentence and such amounts are paid by the
Trust, the Securities Administrator shall, at the direction and expense of the
Certificateholders, take appropriate action to enforce such obligation and
recover such amounts on behalf of such Certificateholders.
Notwithstanding any termination of the activities of the
Master Servicer hereunder, the Master Servicer shall continue to be entitled to
receive from the Trust, payment of all the accrued and unpaid portion of the
Master Servicing Fees to which the Master Servicer would have been entitled and
reimbursement for all outstanding Monthly Advances which amount shall be
remitted by the Successor Master Servicer to the terminated Master Servicer as
permitted under Section 3.01 of the Indenture on a first-in, first-out basis.
The Master Servicer shall continue to be entitled to the benefits of Section
5.03, notwithstanding any termination hereunder, with respect to events
occurring prior to such termination.
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(c) Upon the occurrence of a Master Servicer Event of
Default, the Indenture Trustee shall act as Master Servicer under this
Agreement, subject to the right of removal set forth in subsection (b) hereof,
for an initial period commencing on the date on which such Master Servicer Event
of Default occurred and ending on the last day of the calendar quarter in which
such Master Servicer Event of Default occurred, which period shall be extended
by the Indenture Trustee (an "Extension Notice") for a succeeding quarterly
period ending on December 31, March 31, June 30 and September 30 of each year
(each such quarterly period for which the Master Servicer shall be designated to
act as Master Servicer hereunder, a "Master Servicer Term of Service") until
such time as the Securities Administrator and the Indenture Trustee receives
written direction from the Holders of not less than 51% of the aggregate Note
Balance of the Notes not to deliver an Extension Notice, in which event the
Indenture Trustee shall follow such direction; provided that nothing in this
clause (c) shall prohibit the Indenture Trustee from removing (or prohibit
Noteholders from directing the Indenture Trustee or the Securities Administrator
to direct the Indenture Trustee to remove) the Master Servicer pursuant to
clause (b) above. In the event the Indenture Trustee fails to deliver an
Extension Notice prior to the end of any Master Servicer Term of Service, the
Master Servicer shall be automatically terminated.
(d) If the Successor Master Servicer or another Person
succeeds to the obligations of Master Servicer hereunder, the term of the
Successor Master Servicer or such Person shall not be limited unless and until a
Master Servicer Event of Default thereafter occurs with respect to such
Successor Master Servicer or other Person. At such time, the provisions of
Section 6.03(c) and (d) shall become applicable to the then-acting Master
Servicer and the Person then-obligated to succeed such then-acting Master
Servicer.
Section 6.04. APPOINTMENT OF SUCCESSOR MASTER SERVICER.
(a) The Issuer and the Indenture Trustee hereby appoint,
and HSBC Bank USA, National Association, hereby accepts appointment, on behalf
of itself or an affiliate, subject to the provisions of Section 4.15 thereof,
upon receipt by the Master Servicer of a notice of termination pursuant to
Section 6.03 or upon resignation of the Master Servicer pursuant to Section
4.15, to be the successor (the "Successor Master Servicer") in all respects to
the Master Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof arising on and after its succession;
PROVIDED, HOWEVER, that, without affecting the immediate termination of the
rights of the Master Servicer hereunder, it is understood and acknowledged by
the parties hereto that there will be a period of transition not to exceed 90
days (the "Master Servicer Transition Period") before the master servicing
transfer is fully effected.
During the Master Servicer Transition Period, neither the
Successor Master Servicer, the Securities Administrator nor the Indenture
Trustee shall be responsible for the lack of information and documents that it
cannot reasonably obtain on a practicable basis under the circumstances.
As compensation therefor, the Successor Master Servicer shall
be entitled to such compensation as the Master Servicer would have been entitled
to hereunder if no such notice of
51
termination had been given. Notwithstanding the above, if the Successor Master
Servicer is legally unable to act as successor servicer, the Indenture Trustee
may appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank or other mortgage loan or
home equity loan servicer that is an Approved Servicer (defined for this purpose
by (i) striking the words "the Master Servicer" in clause 1 of the definition
thereof and (ii) striking clause 2(a) in the definition thereof) as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder;
PROVIDED that the appointment of any such Successor Master Servicer will not
result in the qualification, reduction or withdrawal of the ratings assigned to
the Offered Notes by the Rating Agencies. Pending appointment of a successor to
the Master Servicer hereunder, unless the Successor Master Servicer is
prohibited by law from so acting, the Successor Master Servicer shall act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on the Mortgage Loans in an amount equal to the compensation which the
Master Servicer would otherwise have received pursuant to Section 4.09 (or such
lesser compensation as the Indenture Trustee and such successor shall agree).
The appointment of a Successor Master Servicer shall not affect any liability of
the predecessor Master Servicer which may have arisen under this Agreement prior
to its termination as Master Servicer to indemnify the Indenture Trustee, the
Servicer and the Securities Administrator pursuant to Section 5.06, nor shall
any Successor Master Servicer be liable for any acts or omissions of the
predecessor Master Servicer or for any breach by such Master Servicer of any of
its representations or warranties contained herein or in any related document or
agreement. During the Master Servicer Transition Period, the Indenture Trustee,
the Securities Administrator or a Successor Master Servicer shall have no
responsibility or obligation (i) to repurchase or substitute for any of the
Mortgage Loans or (ii) for any acts or omissions of a predecessor Master
Servicer. The Indenture Trustee, the Securities Administrator and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) Any successor, including the Successor Master
Servicer, to the Master Servicer as servicer shall during the term of its
service as master servicer (i) continue to master service and administer the
Mortgage Loans for the benefit of Noteholders and (ii) maintain in force a
policy or policies of insurance covering errors and omissions in the performance
of its obligations as Master Servicer hereunder and a fidelity bond in respect
of its officers, employees and agents to the same extent as the Master Servicer
is so required pursuant to Section 4.04.
(c) In connection with the termination or resignation of
the Master Servicer hereunder, the Successor Master Servicer, including the
Indenture Trustee if the Indenture Trustee is acting as Successor Master
Servicer, shall represent and warrant that it is a member of MERS in good
standing and shall agree to comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Mortgage Loans that
are registered with MERS.
Section 6.05. WAIVER OF DEFAULTS.
The Holders of not less than 51% of the aggregate Note Balance
of the Notes may, on behalf of all Noteholders, waive any events permitting
removal of the Servicer as servicer or of the Master Servicer as master servicer
pursuant to this Article VI, PROVIDED,
52
HOWEVER, that the Holders of not less than 51% of the aggregate Note Balance of
the Notes may not waive a default in making a required payment on a Note without
the consent of the Holder of such Note. Upon any waiver of a past default, such
default shall cease to exist, and any Servicer 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 thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Securities Administrator to the
Rating Agencies.
Section 6.06. NOTIFICATION TO NOTEHOLDERS.
Upon any termination or appointment of a successor to the
Servicer pursuant to this Article VI or Section 5.04, the Securities
Administrator shall give prompt written notice thereof to the Noteholders at
their respective addresses appearing in the Note Register and to each Rating
Agency.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. AMENDMENT.
(a) This Agreement may be amended from time to time by
the Issuer, the Servicer, the Master Servicer, the Securities Administrator and
the Indenture Trustee subject, in the case of any amendment or modification
which affects any right, benefit, duty or obligation of the Custodian, to the
consent of the Custodian, in each case without the consent of any of the
Noteholders, (i) to cure any ambiguity, (ii) to correct, modify or supplement
any provisions herein, (iii) to add to the duties of the Servicer or of the
Master Servicer, (iv) to add any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement or (v) to provide for gross deposits to the
Collection Account by the Servicer; PROVIDED, HOWEVER, that as evidenced by an
Opinion of Counsel (at the expense of the requesting party) in each case such
action shall not adversely affect in any material respect the interest of any
Noteholder; and PROVIDED, FURTHER, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Noteholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Notes.
(b) This Agreement also may be amended from time to time
by the Issuer, the Servicer, the Master Servicer, the Securities Administrator
and the Indenture Trustee, subject, in the case of any amendment or modification
which affects any right, benefit, duty or obligation of the Custodian, to the
consent of the Custodian, with the consent of the Holders of not less than 51%
of the Note Balance of the Class of Notes affected by such amendment (or in the
case of an amendment which affects all classes, the consent of the Holders of
not less than 51% of the Note Balance of the Notes), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
PROVIDED, HOWEVER, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments on the Notes which are required to
be made on any Note without the consent of the Holder of such Note or (ii)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the Holders of all Notes then outstanding.
(c) Prior to the execution of any such amendment, the
Securities Administrator shall furnish written notification of the substance of
such amendment to each Rating Agency. In addition, promptly after the execution
of any such amendment made with the consent of the Noteholders, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Noteholder.
(d) It shall not be necessary for the consent of
Noteholders under this Section 7.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders shall be
subject to such reasonable requirements as the Securities Administrator may
prescribe.
54
Notwithstanding the permissive language in Section 7.01(a) and
7.01(b), upon satisfaction of the conditions in Section 7.01(a) or 7.01(b) as
applicable, the Indenture Trustee and the Securities Administrator shall execute
and deliver the applicable amendment; PROVIDED, HOWEVER, that the Indenture
Trustee and the Securities Administrator shall not be required to execute any
amendment which, based on an Opinion of Counsel, materially and adversely
affects the rights, duties or immunities of the Indenture Trustee or of the
Securities Administrator hereunder.
Section 7.02. GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.03. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if and
when delivered to:
(a) in the case of the Servicer:
Ocwen Federal Bank FSB
The Forum, Suite 1002
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Secretary
(b) in the case of the Master Servicer:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Renaissance HEL Trust 2005-1
(c) in the case of Rating Agencies:
Xxxxx'x Investors Service, Inc.
4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Monitoring Unit
Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
00 Xxxxx Xxxxxx - 41st Floor
New York, New York 10041
Attention: Asset Backed Surveillance Group
(d) in the case of the Owner Trustee, the Corporate Trust
Office:
55
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
(e) in the case of the Issuer, to Renaissance Home Equity
Loan Trust 2005-1:
c/o Renaissance Mortgage Acceptance Corp.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
(f) in the case of the Indenture Trustee or the
Securities Administrator, to the respective Corporate Trust Office;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 4.16, 5.02, 5.04 and 5.05 (or
3.01), this Agreement may not be assigned by the Master Servicer or the Servicer
without the prior written consent of the Holders of not less than 66% of the
aggregate Note Balance of the Notes. Notwithstanding the foregoing, the Servicer
and the Master Servicer may assign its rights to reimbursement for Monthly
Advances, Servicing Advances and Nonrecoverable Advances, as applicable, without
Noteholder consent.
Section 7.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Servicing Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.06. THIRD-PARTY BENEFICIARIES. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the Noteholders,
the Owner Trustee, the Indenture Trustee and their respective successors and
permitted assigns. Except as otherwise provided in this Servicing Agreement, no
other Person will have any right or obligation hereunder. The Indenture Trustee
shall have the right to exercise all rights of the Issuer under this Servicing
Agreement.
56
Section 7.07. COUNTERPARTS. This instrument may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 7.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 7.09. TERMINATION. The respective obligations and
responsibilities of the Master Servicer and the Issuer created hereby shall
terminate upon the satisfaction and discharge of the Indenture pursuant to
Section 4.10 thereof.
Section 7.10. NO PETITION. The Master Servicer, by entering
into this Servicing Agreement, hereby covenants and agrees that it will not at
any time institute against the Issuer, or join in any institution against the
Issuer, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations of the Issuer. This
section shall survive the termination of this Servicing Agreement by one year.
Section 7.11. NO RECOURSE. The Master Servicer acknowledges
that no recourse may be had against the Issuer, except as may be expressly set
forth in this Servicing Agreement.
Section 7.12. INDENTURE TRUSTEE RIGHTS. The Indenture Trustee
and the Securites Administrator shall each be entitled to the same rights,
protections, indemnities and immunities afforded to it under the Indenture as if
specifically set forth herein.
Section 7.13. WAIVER OF JURY TRIAL. EACH PARTY HERBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 7.14. NO RECOURSE TO OWNER TRUSTEE. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Company, not individually or personally, but
solely as Owner Trustee of Renaissance Home Equity Loan Trust 2005-1, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
for binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related documents.
57
IN WITNESS WHEREOF, the Master Servicer, the Servicer, the
Issuer, the Indenture Trustee and the Securities Administrator have caused this
Servicing Agreement to be duly executed by their respective officers or
representatives all as of the day and year first above written.
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
OCWEN FEDERAL BANK FSB,
as Servicer
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
RENAISSANCE HOME EQUITY LOAN TRUST
2005-1, as Issuer
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
HSBC BANK USA, NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this Mortgage Loan Schedule is
being filed in paper pursuant to a continuing hardship exemption.)
A-1
EXHIBIT B
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
Xxxxx Fargo Bank, N.A.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Mortgage Document Custody
Re: Custodial Agreement dated as of March 1, 2005 among
Renaissance REIT Investment Corp., as Seller, Renaissance
Mortgage Acceptance Corp., as Depositor, Ocwen Federal Bank
FSB, as Servicer, HSBC Bank USA, National Association, as
Indenture Trustee and Xxxxx Fargo Bank, N.A., as Custodian for
Renaissance Home Equity Loan Trust 2005-1, Home Equity Loan
Asset-backed Notes, Series 2005-1
--------------------------------------------------------------
In connection with the administration of the Mortgage Loans
held by you, as Custodian, pursuant to the above-captioned Custodial Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (check one):
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason:______________________
By:__________________________
(authorized signer)
[Servicer] [Master Servicer]:
Address:_____________________
Date: ______________________
B-1
CUSTODIAN
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
-------------------------- ----------------------
Signature Date
Documents returned to Custodian:
-------------------------- ---------------------
Custodian Date
B-2
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED TO THE MASTER SERVICER BY THE
SECURITIES ADMINISTRATOR
Re: Renaissance Home Equity Loan Trust 2005-1 (the "Trust")
I, [identify the certifying individual], a [title] of Xxxxx
Fargo Bank, N.A., as Securities Administrator of the Trust, hereby certify to
Xxxxx Fargo Bank, N.A. (the "Master Servicer"), and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for
the fiscal year [___], and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered by that annual
report, of the Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these
distribution reports prepared by the Securities Administrator, 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 light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by that annual report;
3. Based on my knowledge, the distribution information
required to be provided by the Securities Administrator under the pooling and
servicing agreement for inclusion in these reports is included in these reports;
Date: ___________________
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
--------------------------------
Name:
Title:
C-1-1
EXHIBIT C-2
FORM OF CERTIFICATION TO BE
PROVIDED TO THE MASTER SERVICER BY THE SERVICER
Re: Renaissance Home Equity Loan Trust 2005-1 (the
"Trust")
I, [identify the certifying individual], a [title] of Ocwen
Federal Bank FSB, as Servicer of the Trust, hereby certify to Xxxxx Fargo Bank,
N.A. (the "Master Servicer"), and its officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. Based on my knowledge, the information in the Annual
Statement of Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Master Servicer
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 light of
the circumstances under which such statements were made, not misleading as of
the date of this certification;
2. Based on my knowledge, the servicing information
required to be provided to the Master Servicer by the Servicer under the
Servicing Agreement has been provided to the Master Servicer;
3. I am responsible for reviewing the activities
performed by the Servicer under the Servicing Agreement and based upon the
review required by the Servicing Agreement, and except as disclosed in the
Annual Statement of Compliance, the Annual Independent Public Accountant's
Servicing Report and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans submitted to the
Master Servicer, the Servicer has, for the period covered by this certification
fulfilled its obligations under the Servicing Agreement; and
4. I have disclosed to the Master Servicer all
significant deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar standard as
set forth in the Pooling and Servicing Agreement.
Date: ___________________
OCWEN FEDERAL BANK FSB,
as Servicer
By:
--------------------------------
Name:
Title:
C-2-1
EXHIBIT D
CALCULATION OF REALIZED LOSS/GAIN FORM 332
(a) The numbers on the form correspond with the numbers
listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage
Loan. For documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
2. The Total Interest Due less the aggregate amount of
servicing fee that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing fees advanced is
required.
3. Accrued Servicing Fees based upon the Scheduled
Principal Balance of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. All line entries must be
supported by copies of appropriate statements, vouchers, receipts, bills,
canceled checks, etc., to document the expense. Electronic or online billing
printouts will be accepted as proper documentation. Entries not properly
documented will not be reimbursed to the Servicer.
13. The total of lines 1 through 12.
(b) Credits:
14-21. Complete as applicable. All line entries must be
supported by copies of the appropriate claims forms, EOBs, HUD-1 and/or other
proceeds verification, statements, payment checks, etc. to document the credit.
If the Mortgage Loan is subject to a Bankruptcy Deficiency, the difference
between the Unpaid Principal Balance of the Note prior to the Bankruptcy
Deficiency and the Unpaid Principal Balance as reduced by the Bankruptcy
Deficiency should be input on line 20.
22. The total of lines 14 through 21.
PLEASE NOTE: For HUD/VA loans, use line (15) for Part
A/Initial proceeds and line (16) for Part B/Supplemental proceeds.
(c) Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13.
If the amount represents a realized gain, show the amount in parenthesis ( ).
D-1
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by:_______________________ Date: ______________________________
Phone:_____________________________ Email Address:_______________________
----------------- ------------- ----------------
Servicer Loan No. Servicer Name Servicer Address
----------------- ------------- ----------------
XXXXX FARGO BANK, N.A. Loan No.___________________________
Borrower's Name:__________________________________________
Property Address:_________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes ________________(5)
(6) Property Maintenance ________________(6)
(7) MI/Hazard Insurance Premiums ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) $_______________(12)
Cash for Keys__________________________ ________________
HOA/Condo Fees_________________________ ________________
_______________________________________ ________________
TOTAL EXPENSES $_______________(13)
CREDITS:
(14) Escrow Balance $_______________(14)
(15) HIP Refund ________________(15)
(16) Rental Receipts ________________(16)
(17) Hazard Loss Proceeds ________________(17)
(18) Primary Mortgage Insurance Proceeds ________________(18)
(19) Pool Insurance Proceeds ________________(19)
(20) Proceeds from Sale of Acquired Property ________________(20)
(21) Other (itemize) ________________(21)
___________________________________________ ________________
___________________________________________ ________________
TOTAL CREDITS $_______________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $_______________(23)
D-2
EXHIBIT E
STANDARD FILE LAYOUT--SCHEDULED/SCHEDULED
------------------------- -------------------------------------------------- --------- ------------------------------------
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------------- -------------------------------------------------- --------- ------------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
------------------------- -------------------------------------------------- --------- ------------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
------------------------- -------------------------------------------------- --------- ------------------------------------
BORROWER_NAME Mortgagor name assigned to Note Max length of 30
------------------------- -------------------------------------------------- --------- ------------------------------------
SCHED_PMT_AMT P&I constant 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
------------------------- -------------------------------------------------- --------- ------------------------------------
NET_RATE Gross Interest Rate less the Service Fee Rate 4 Max length of 6
------------------------- -------------------------------------------------- --------- ------------------------------------
SERV_FEE_RATE Service Fee Rate 4 Max length of 6
------------------------- -------------------------------------------------- --------- ------------------------------------
NEW_PAY_AMT ARM loan's forecasted P&I constant 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
NEW_LOAN_RATE ARM loan's forecasted Gross Interest Rate 4 Max length of 6
------------------------- -------------------------------------------------- --------- ------------------------------------
ARM_INDEX_RATE ARM loan's index Rate used 4 Max length of 6
------------------------- -------------------------------------------------- --------- ------------------------------------
ACTL_BEG_BAL Beginning Actual Balance 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
ACTL_END_BAL Ending Actual Balance 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
NEXT_DUE_DATE Borrower's next due date MM/DD/YYYY
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_AMT_1 Curtailment Amount 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_DATE_1 Due date Curtailment was applied to MM/DD/YYYY
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_ADJ_ AMT_1 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_AMT_2 Curtailment Amount 2 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_DATE_2 Due date Curtailment was applied to MM/DD/YYYY
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_ADJ_ AMT2 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_AMT_3 Curtailment Amount 3 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_DATE_3 Due date Curtailment was applied to MM/DD/YYYY
------------------------- -------------------------------------------------- --------- ------------------------------------
CURT_ADJ_AMT3 Curtailment Interest, if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
SCHED_BEG_BAL Beginning Scheduled Balance 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
SCHED_END_BAL Ending Scheduled Balance 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
Scheduled Net Interest (less Service Fee)
SCHED_NET_INT portion of P&I 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
Liquidation Principal Amt to bring balance to
LIQ_AMT zero 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
PIF_DATE Liquidation Date MM/DD/YYYY
------------------------- -------------------------------------------------- --------- ------------------------------------
ACTION_CODE Either 60 for liquidation or 65 for Repurchase Max length of 2
------------------------- -------------------------------------------------- --------- ------------------------------------
PRIN_ADJ_AMT Principal Adjustments made to loan, if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
INT_ADJ_AMT Interest Adjustment made to loan, if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
PREPAYMENT PENALTY AMT Prepayment penalty amount, if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
Soldier and Sailor Adjustment amount, if
SOILDER_SAILOR ADJ AMT applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
NON ADV LOAN AMT Non Recoverable Loan Amount, if applicable 2 No commas(,) or dollar signs ($)
------------------------- -------------------------------------------------- --------- ------------------------------------
E-1
EXHIBIT F
STANDARD FILE LAYOUT--DELINQUENCY REPORTING
------------------------- -------------------------------------------------------------- ------- ----------------
Column/Header Name Description Decimal Format Comment
------------------------- -------------------------------------------------------------- ------- ----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer.
This may be different than the LOAN_NBR
------------------------- -------------------------------------------------------------- ------- ----------------
LOAN_NBR A unique identifier assigned to each loan by the originator.
------------------------- -------------------------------------------------------------- ------- ----------------
CLIENT_NBR Servicer Client Number
------------------------- -------------------------------------------------------------- ------- ----------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an external
servicer to identify a group of loans in their
system.
------------------------- -------------------------------------------------------------- ------- ----------------
BORROWER_FIRST_NAME First Name of the Borrower.
------------------------- -------------------------------------------------------------- ------- ----------------
BORROWER_LAST_NAME Last name of the borrower.
------------------------- -------------------------------------------------------------- ------- ----------------
XXXX_XXXXXXX Xxxxxx Name and Number of Property
------------------------- -------------------------------------------------------------- ------- ----------------
PROP_STATE The state where the property located.
------------------------- -------------------------------------------------------------- ------- ----------------
PROP_ZIP Zip code where the property is located.
------------------------- -------------------------------------------------------------- ------- ----------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as
reported by Servicer.
------------------------- -------------------------------------------------------------- ------- ----------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
------------------------- -------------------------------------------------------------- ------- ----------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
------------------------- -------------------------------------------------------------- ------- ----------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
------------------------- -------------------------------------------------------------- ------- ----------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved MM/DD/YYYY
by the courts
------------------------- -------------------------------------------------------------- ------- ----------------
BANKRUPTCY_DCHRG The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
_DISM_DATE Dismissal, Discharged and/or a Motion For Relief Was
Granted.
------------------------- -------------------------------------------------------------- ------- ----------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
------------------------- -------------------------------------------------------------- ------- ----------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with
instructions to begin foreclosure proceedings. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
------------------------- -------------------------------------------------------------- ------- ----------------
FRCLSR_SALE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
_EXPECTED_DATE
------------------------- -------------------------------------------------------------- ------- ----------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the
MM/DD/YYYY property from the borrower.
------------------------- -------------------------------------------------------------- ------- ----------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
F-1
------------------------- -------------------------------------------------------------- ------- ----------------
OCCUPANT_CODE Classification of how the property is occupied.
------------------------- -------------------------------------------------------------- ------- ----------------
PROP_CONDITION_CODE A code that indicates the condition of the property.
------------------------- -------------------------------------------------------------- ------- ----------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
------------------------- -------------------------------------------------------------- ------- ----------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs
are 2 completed pursuant to a broker's price opinion
or appraisal.
------------------------- -------------------------------------------------------------- ------- ----------------
If applicable:
------------------------- -------------------------------------------------------------- ------- ----------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
------------------------- -------------------------------------------------------------- ------- ----------------
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why the
loan is in default for this cycle.
------------------------- -------------------------------------------------------------- ------- ----------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
------------------------- -------------------------------------------------------------- ------- ----------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
------------------------- -------------------------------------------------------------- ------- ----------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_A_CLAIM Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
_FILED_DATE
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_A_CLAIM Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
_PAID_DATE
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_A_CLAIM Amount HUD Paid on Part A Claim 2 No commas(,) or
_PAID_AMT dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_B_CLAIM Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
_FILED_DATE
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_B_CLAIM Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
_PAID_DATE
------------------------- -------------------------------------------------------------- ------- ----------------
FHA_PART_B_CLAIM Amount HUD Paid on Part B Claim 2 No commas(,) or
_PAID_AMT dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
------------------------- -------------------------------------------------------------- ------- ----------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
------------------------- -------------------------------------------------------------- ------- ----------------
F-2
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
F-3
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
------------------------ ------------------------------------------------------
DELINQUENCY CODE DELINQUENCY DESCRIPTION
------------------------ ------------------------------------------------------
001 FNMA-Death of principal mortgagor
------------------------ ------------------------------------------------------
002 FNMA-Illness of principal mortgagor
------------------------ ------------------------------------------------------
003 FNMA-Illness of mortgagor's family member
------------------------ ------------------------------------------------------
004 FNMA-Death of mortgagor's family member
------------------------ ------------------------------------------------------
005 FNMA-Marital difficulties
------------------------ ------------------------------------------------------
006 FNMA-Curtailment of income
------------------------ ------------------------------------------------------
007 FNMA-Excessive Obligation
------------------------ ------------------------------------------------------
008 FNMA-Abandonment of property
------------------------ ------------------------------------------------------
009 FNMA-Distant employee transfer
------------------------ ------------------------------------------------------
011 FNMA-Property problem
------------------------ ------------------------------------------------------
012 FNMA-Inability to sell property
------------------------ ------------------------------------------------------
013 FNMA-Inability to rent property
------------------------ ------------------------------------------------------
014 FNMA-Military Service
------------------------ ------------------------------------------------------
015 FNMA-Other
------------------------ ------------------------------------------------------
016 FNMA-Unemployment
------------------------ ------------------------------------------------------
017 FNMA-Business failure
------------------------ ------------------------------------------------------
019 FNMA-Casualty loss
------------------------ ------------------------------------------------------
022 FNMA-Energy environment costs
------------------------ ------------------------------------------------------
023 FNMA-Servicing problems
------------------------ ------------------------------------------------------
026 FNMA-Payment adjustment
------------------------ ------------------------------------------------------
027 FNMA-Payment dispute
------------------------ ------------------------------------------------------
029 FNMA-Transfer of ownership pending
------------------------ ------------------------------------------------------
030 FNMA-Fraud
------------------------ ------------------------------------------------------
031 FNMA-Unable to contact borrower
------------------------ ------------------------------------------------------
INC FNMA-Incarceration
------------------------ ------------------------------------------------------
F-4
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
------------------------ ------------------------------------------------
STATUS CODE STATUS DESCRIPTION
------------------------ ------------------------------------------------
09 Forbearance
------------------------ ------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
------------------------ ------------------------------------------------
24 Government Seizure
------------------------ ------------------------------------------------
26 Refinance
------------------------ ------------------------------------------------
27 Assumption
------------------------ ------------------------------------------------
28 Modification
------------------------ ------------------------------------------------
29 Charge-Off
------------------------ ------------------------------------------------
30 Third Party Sale
------------------------ ------------------------------------------------
31 Probate
------------------------ ------------------------------------------------
32 Military Indulgence
------------------------ ------------------------------------------------
43 Foreclosure Started
------------------------ ------------------------------------------------
44 Deed-in-Lieu Started
------------------------ ------------------------------------------------
49 Assignment Completed
------------------------ ------------------------------------------------
61 Second Lien Considerations
------------------------ ------------------------------------------------
62 Veteran's Affairs-No Bid
------------------------ ------------------------------------------------
63 Veteran's Affairs-Refund
------------------------ ------------------------------------------------
64 Veteran's Affairs-Buydown
------------------------ ------------------------------------------------
65 Chapter 7 Bankruptcy
------------------------ ------------------------------------------------
66 Chapter 11 Bankruptcy
------------------------ ------------------------------------------------
67 Chapter 13 Bankruptcy
------------------------ ------------------------------------------------
F-5
EXHIBIT G
FORM OF MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT
RENAISSANCE MORTGAGE ACCEPTANCE CORP.
as Purchaser,
RENAISSANCE REIT INVESTMENT CORP.
as Seller,
and
DELTA FUNDING CORPORATION
as Originator
--------------------------
MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT
Series 2005-1
Dated as of March 31, 2005
--------------------------
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS...........................................................................2
Section 1.1 Definitions.........................................................................2
ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS.........................................2
Section 2.1 Sale of Mortgage Loans..............................................................2
Section 2.2 Agreement to Purchase...............................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH...................................6
Section 3.1 Representations and Warranties......................................................6
Section 3.2 Substitution of Mortgage Loans.....................................................18
ARTICLE IV SELLER'S COVENANTS...................................................................19
Section 4.1 Covenants of the Seller............................................................19
ARTICLE V INDEMNIFICATION BY THE ORIGINATOR....................................................20
Section 5.1 Indemnification....................................................................20
Section 5.2 Limitation on Liability of the Originator and the Seller...........................21
ARTICLE VI TERMINATION..........................................................................21
Section 6.1 Termination........................................................................21
ARTICLE VII ADMINISTRATIVE DUTIES................................................................21
Section 7.1 Administrative Duties..............................................................21
Section 7.2 Records............................................................................24
Section 7.3 Additional Information to be Furnished.............................................24
ARTICLE VIII MISCELLANEOUS PROVISIONS.............................................................24
Section 8.1 Amendment..........................................................................24
Section 8.2 Governing Law......................................................................24
Section 8.3 Notices............................................................................24
Section 8.4 Severability of Provisions.........................................................25
Section 8.5 Relationship of Parties............................................................25
Section 8.6 Counterparts.......................................................................25
Section 8.7 Further Agreements.................................................................25
Section 8.8 Intention of the Parties...........................................................25
Section 8.9 Successors and Assigns; Assignment of Purchase Agreement...........................25
Section 8.10 Survival...........................................................................25
Section 8.11 Third Party Beneficiary............................................................25
EXHIBIT A
MORTGAGE LOAN SCHEDULE............................................................A-1
i
This MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT (this
"Agreement"), dated as of March 31, 2005, is made among Renaissance REIT
Investment Corp. (the "Seller"), Renaissance Mortgage Acceptance Corp. (the
"Purchaser") and Delta Funding Corporation (the "Originator").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller owns the Mortgage Loans indicated on the
Mortgage Loan Schedule attached as Exhibit A hereto (the "Mortgage Loans"),
including rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, (b) the proceeds of any insurance policies covering
the Mortgage Loans and (c) its rights with respect to each of the Group I
Interest Rate Cap Agreement and the NIMs Interest Rate Cap Agreement; and
WHEREAS, the parties hereto desire that the Seller sell the
Mortgage Loans to the Purchaser and transfer its rights under the Group I
Interest Rate Cap Agreement and the NIMs Interest Rate Cap Agreement to the
Purchaser, and that the Originator make certain representations and warranties
on the Closing Date and undertake certain obligations on the Closing Date with
respect to such Mortgage Loans, in each case pursuant to the terms of this
Agreement; and
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of March 31, 2005 (the "Trust Agreement"), among the
Purchaser, as depositor, Wilmington Trust Company, as owner trustee (the "Owner
Trustee") and Xxxxx Fargo Bank, N.A., as certificate registrar and certificate
paying agent, the Purchaser will convey the Mortgage Loans to the Issuer; and
WHEREAS, pursuant to the terms of a Servicing Agreement dated
as of March 31, 2005 (the "Servicing Agreement"), among Xxxxx Fargo Bank, N.A.,
as master servicer (the "Master Servicer") and securities administrator (the
"Securities Administrator"), Ocwen Federal Bank FSB, servicer (the "Servicer"),
Renaissance Home Equity Loan Trust 2005-1, as issuer (the "Issuer") and HSBC
Bank USA, National Association, as indenture trustee (the "Indenture Trustee"),
the Servicer will service the Mortgage Loans directly or through one or more
Subservicers and the Master Servicer will provide master servicing functions;
and
WHEREAS, pursuant to the terms of an Indenture dated as of
March 31, 2005 (the "Indenture"), between the Issuer, the Indenture Trustee and
the Securities Administrator, the Issuer will pledge the Mortgage Loans to the
Indenture Trustee and issue and transfer to the Purchaser the Asset-Backed
Notes, Series 2005-1 (collectively, the "Notes"), representing debt of the
Issuer; and
WHEREAS, the parties intend these transactions to be treated
for federal, state and local tax purposes as the retention by the Seller of
ownership of the Mortgage Loans and issuance by the Seller of secured
indebtedness evidenced by the Notes, and have mutually covenanted to treat the
transactions consistent with that intent for all federal, state and local tax
purposes;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. For all purposes of this Mortgage
Loan Sale and Contribution Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
attached to the Indenture as Appendix A, which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 SALE OF MORTGAGE LOANS.
(a) The Seller, concurrently with the execution and
delivery of this Agreement, does hereby sell, transfer, assign, set over and
otherwise convey, to the Purchaser, without recourse, (subject to Sections 2.2
and 3.1) (i) all of its right, title and interest in and to each Mortgage Loan,
including the Cut-Off Date Principal Balance and all collections in respect of
interest and principal received after the Cut-Off Date (other than payments in
respect of accrued interest and principal due on or before March 1, 2005); (ii)
property which secured such Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance
policies in respect of the Mortgage Loans and (v) all proceeds of any of the
foregoing.
(b) In connection with such transfer, assignment and
conveyance the Seller shall deliver to, and deposit with, the Indenture Trustee
or the Custodian on behalf of the Indenture Trustee, on or before the Closing
Date, the following documents or instruments with respect to each Mortgage Loan
(the "Related Documents") and the related Mortgage Loan Schedule in computer
readable format:
(i) The original Mortgage Note, with all prior and
intervening endorsements showing a complete chain of endorsements from
the originator of the Mortgage Loan to the Person so endorsing the
Mortgage Loan to the Indenture Trustee, endorsed by such Person "Pay to
the order of HSBC Bank USA, National Association, as Indenture Trustee
under the applicable agreement, without recourse" and signed, by
facsimile or manual signature, in the name of the Seller by a
Responsible Officer;
(ii) For each Mortgage Loan that is not a MERS Mortgage
Loan, any of: (1) the original Mortgage and related power of attorney,
if any, with evidence of recording thereon, (2) (A) a copy of the
Mortgage, if any, certified as a true copy of the original Mortgage by
a Responsible Officer of the Seller by facsimile or manual signature or
by the closing attorney or by an officer of the title insurer or agent
of the title insurer that issued the related title insurance policy, in
such case, if the original has been transmitted for recording until
such time as the original is returned by the public recording office
and
2
(B) a copy of the related power of attorney, if any, or (3) a copy of
the original recorded Mortgage and a copy of the related power of
attorney, if any, certified by the public recording office. For each
Mortgage Loan that is a MERS Mortgage Loan, the original Mortgage,
noting the presence of the MIN of the related Mortgage Loan and either
language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan
at origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded;
(iii) For each Mortgage Loan, the original Assignment of
Mortgage in recordable form, from the Seller in blank, or to "HSBC Bank
USA, National Association, as Indenture Trustee under the applicable
agreement";
(iv) The original lender's title insurance policy or a
true copy thereof or, if such original lender's title insurance policy
has been lost, a copy thereof certified by the appropriate title
insurer to be true and complete or, if such lender's title insurance
policy has not been issued as of the Closing Date, a marked up
commitment (binder) to issue such policy;
(v) For each Mortgage Loan that was not a MERS Mortgage
Loan at its origination, all intervening assignments, if any, showing a
complete chain of assignments from the originator to the Seller,
including any recorded warehousing assignments, with evidence of
recording thereon, or a copy thereof certified by a Responsible Officer
of the Seller by facsimile or manual signature, or by the closing
attorney or by an officer of the title insurer or agent of the title
insurer that issued the related title insurance policy, as a true copy
of the original of such intervening assignments if the original has
been transmitted for recording until such time as the original is
returned by the public recording office or a copy of the original
recorded intervening assignments certified by the public recording
office;
(vi) Originals of all assumption, written assurance,
substitution and modification agreements, if any; and
(vii) In the case of a Cooperative Loan, the originals of
the following documents or instruments:
1. The Cooperative Shares, together with a
stock power in blank;
2. The executed Security Agreement;
3. The executed Proprietary Lease;
4. The executed Recognition Agreement;
5. The executed assignment of Recognition
Agreement;
3
6. The executed UCC-1 financing statements with
evidence of recording thereon which have
been filed in all places required to perfect
the Seller's interest in the Cooperative
Shares and the Proprietary Lease; and
7. Executed UCC-3 financing statements or other
appropriate UCC financing statements
required by state law, evidencing a complete
and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon
(or in a form suitable for recordation).
In addition, in connection with the assignment of any MERS
Mortgage Loan, the Seller agrees that it will cause, at the Seller's expense,
the MERS(R) System to indicate that such Mortgage Loans have been assigned by
the Seller to the Indenture Trustee in accordance with this Agreement for the
benefit of the Noteholders, by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such computer
files the information required by the MERS(R) System to identify the series of
Notes issued in connection with such Mortgage Loans. The Seller further agrees
that it will not, and will not permit the Servicer or the Master Servicer to
alter the information referenced in this paragraph with respect to any Mortgage
Loan during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
In instances where, for a Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage is not delivered as provided
above, and in instances where intervening assignments called for by clause (v)
above are unavailable, the Seller will deliver or cause to be delivered the
original recorded Mortgage and intervening assignments to the Indenture Trustee
or the Custodian on behalf of the Indenture Trustee promptly upon receipt
thereof but in no event later than one year after the Closing Date.
The Seller hereby confirms to the Purchaser that it has caused
the portions of the Electronic Ledger relating to the Mortgage Loans to be
clearly and unambiguously marked, and has made the appropriate entries in its
general accounting records, to indicate that such Mortgage Loans have been
transferred to the Indenture Trustee, as designee of the Purchaser, and
constitute part of the Trust in accordance with the terms of the trust created
hereunder.
(c) The parties hereto intend that the transactions set
forth herein be a sale by the Seller to the Purchaser of all the Seller's right,
title and interest in and to the Mortgage Loans and other property described
above and the sale by the Purchaser to the Trust of all the Purchaser's right,
title and interest in and to the Mortgage Loans and other property described
above. In the event either transaction set forth herein is deemed not to be a
sale, the Seller hereby grants to the Purchaser, and the Purchaser hereby grants
to the Indenture Trustee, a security interest in all of its respective right,
title and interest in, to and under the Mortgage Loans and other property
described above; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of the Agreement.
4
Except as may otherwise expressly be provided herein, neither
the Seller nor the Purchaser shall assign, sell, dispose of or transfer any
interest in the Trust or any portion thereof, or permit the Trust or any portion
thereof to be subject to any lien, claim, mortgage, security interest, pledge or
other encumbrance of, any other Person.
In the event that the parties hereto have failed to transfer
the entire legal ownership in and to each Mortgage Loan to the Trust, the
parties hereto intend that this document operate to transfer the entire
equitable ownership interest in and to each Mortgage Loan to the Trust.
(d) Except with respect to any MERS Mortgage Loan, within
thirty (30) days of the Closing Date, the Seller, at its own expense, shall
prepare and send for recording the Assignments of Mortgage in favor of the
Indenture Trustee, in the appropriate real property or other records. With
respect to any Assignment of Mortgage as to which the related recording
information is unavailable within thirty (30) days following the Closing Date,
such Assignment of Mortgage shall be submitted for recording within thirty (30)
days after receipt of such information but in no event later than one year after
the Closing Date. The Indenture Trustee or the Custodian on behalf of the
Indenture Trustee shall be required to retain a copy of each Assignment of
Mortgage submitted for recording. In the event that any such Assignment of
Mortgage is lost or returned unrecorded because of a defect therein, the Seller
shall promptly prepare a substitute Assignment of Mortgage or cure such defect,
as the case may be, and thereafter the Seller shall be required to submit each
such Assignment of Mortgage for recording. Any failure of the Seller to comply
with this Section 2.1(d) shall result in the obligation of the Seller to
purchase or substitute for the related Mortgage Loans pursuant to the provisions
of Section 2.2.
(e) [Reserved].
(f) If the Seller is given notice that a Mortgage File is
defective or incomplete and if the Seller does not correct or cure such omission
or defect within the 90-day period specified in this Section 2.1(f), the Seller
shall purchase such Mortgage Loan from the Trust on the Determination Date in
the month following the month in which such 90-day period expired at the
Purchase Price of such Mortgage Loan. At any time the Seller exercises its
option to repurchase any Mortgage Loan pursuant to Section 3.1, the Seller shall
notify the Purchaser, the Servicer, the Master Servicer, the Securities
Administrator and the Indenture Trustee of any such repurchase no later than
five Business Days prior to the Determination Date of the month in which it
wishes to repurchase such Mortgage Loans and the Seller shall repurchase such
Mortgage Loan from the Trust on such Determination Date. The Purchase Price for
any purchased or repurchased Mortgage Loan shall be delivered to the Servicer
for deposit in the Collection Account no later than the applicable Determination
Date; and, upon receipt by the Indenture Trustee or the Custodian on behalf of
the Indenture Trustee of written notification of such deposit signed by a
Responsible Officer of the Seller, the Indenture Trustee or the Custodian on
behalf of the Indenture Trustee shall, in accordance with Section 3.07 of the
Servicing Agreement, release to the Seller the related Mortgage File and the
Indenture Trustee or the Custodian shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Seller or its designee any Mortgage Loan released pursuant hereto.
It is understood and agreed that the obligation of the Seller to purchase
5
any Mortgage Loan as to which a material defect in or omission of a constituent
document exists shall constitute the sole remedy against the Seller respecting
such defect or omission available to the Servicer (in its role as such), the
Master Servicer, the Noteholders, the Securities Administrator or the Indenture
Trustee on behalf of Noteholders. If pursuant to the foregoing provisions the
Seller repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Seller
shall cause the Servicer, at the Seller's expense, to either (i) cause MERS to
execute and deliver an Assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS(R) System in accordance with MERS' rules and
regulations or (ii) cause MERS to designate on the MERS(R) System the Seller as
the beneficial holder of such Mortgage Loan.
The Seller, promptly following the transfer of (i) a Mortgage
Loan from or (ii) an Eligible Substitute Mortgage Loan to the Trust pursuant to
this Section 2.1 or Section 3.1, as the case may be, shall amend the Mortgage
Loan Schedule, appropriately xxxx the Electronic Ledger and make appropriate
entries in its general account records to reflect such transfer and the addition
of any Eligible Substitute Mortgage Loan, if applicable.
Section 2.2 AGREEMENT TO PURCHASE.
The Seller agrees to sell and the Purchaser agrees to
purchase, on or before March 31, 2005 (the "Closing Date"), certain fixed-rate
and adjustable-rate mortgage loans (the "Mortgage Loans"), having an aggregate
principal balance as of the close of business on the Cut-Off Date of
$749,999,268.09 (the "Closing Balance"), after giving effect to all payments due
on the Mortgage Loans on or before the Cut-Off Date, whether or not received,
including the right to any Prepayment Charges payable by the related Mortgagors
in connection with any Principal Prepayments on the Mortgage Loans. The purchase
price payable in connection with such sale shall consist of (i) the cash
proceeds from the sale of the Notes and (ii) delivery of the Trust Certificates
to the Seller.
The Seller and the Purchaser intend that the sale of the
Mortgage Loans to the Purchaser, followed by the Purchaser's sale of the
Mortgage Loans to the Issuer, shall be treated for federal, state and local tax
purposes as a transfer by the Seller directly to the Issuer (followed by the
issuance by the Issuer of Notes that are intended by all parties to such
issuance to be treated for federal, state and local tax purposes as indebtedness
of the Seller secured by the Mortgage Loans).
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 REPRESENTATIONS AND WARRANTIES. The Originator (in
the case of (a) and (c) below) and Seller (in the case of (b) below) hereby
represents and warrants to the Purchaser as of the Closing Date (or if otherwise
specified below, as of the date so specified):
(a) AS TO THE ORIGINATOR:
6
(1) The Originator is a corporation licensed as
a mortgage banker duly organized, validly existing and in good
standing under the laws of the state of its incorporation and
has, and had at all relevant times, full corporate power to
originate the Mortgage Loans, to own its property, to carry on
its business as presently conducted and to enter into and
perform its obligations under this Agreement. The Originator
has all necessary licenses and is qualified to transact
business in and is in good standing under the laws of each
state where a Mortgaged Property is located or is otherwise
exempt under applicable law from such qualification or is
otherwise not required under applicable law to effect such
qualification and no demand for such qualification has been
made upon the Originator by any state having jurisdiction;
(2) The execution and delivery of this Agreement
by the Originator and the Originator's performance of and
compliance with the terms of this Agreement will not violate
the Originator's articles of incorporation or by-laws or
constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result
in the breach or acceleration of, any material contract,
agreement or other instrument to which the Originator is a
party or which may be applicable to the Originator or any of
its assets;
(3) The Originator has the full power and
authority to enter into and consummate all transactions
contemplated by this Agreement to be consummated by it, has
duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this
Agreement. This Agreement, assuming due authorization,
execution and delivery by the other parties hereto,
constitutes a valid, legal and binding obligation of the
Originator, enforceable against it in accordance with the
terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity
principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(4) The Originator is not in violation of, and
the execution and delivery of this Agreement by the Originator
and the performance by it and compliance with the terms of
this Agreement will not constitute a violation with respect
to, any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental
agency having jurisdiction, which violation would materially
and adversely affect the condition (financial or otherwise) or
operations of the Originator or any of its properties or
materially and adversely affect the performance of any of its
duties hereunder;
(5) Except as disclosed in the Prospectus
Supplement, there are no actions or proceedings against, or
investigations of, the Originator pending or, to the knowledge
of the Originator, threatened, before any court,
administrative agency or other tribunal (A) that, if
determined adversely, would prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or (C) that,
if determined
7
adversely, would prohibit or materially and adversely affect
the performance by the Originator of any of its obligations
under, or the validity or enforceability of, this Agreement;
(6) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the execution, delivery and performance by the Originator of,
or compliance by the Originator with, this Agreement, or for
the consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations
and orders, if any, that have been obtained prior to the
Closing Date;
(7) The Originator is a member of MERS in good
standing, and will comply in all material respects with the
rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans
are registered with MERS;
(8) No Officer's Certificate, statement, report
or other document prepared by the Originator and furnished or
to be furnished by it pursuant to this Agreement or in
connection with the transactions contemplated hereby contains
any untrue statement of material fact; and
(9) The transactions contemplated by this
Agreement are in the ordinary course of business of the
Originator.
(b) AS TO THE SELLER:
(1) The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
state of its incorporation and has, and had at all relevant
times, full corporate power to sell the Mortgage Loans, to own
its property, to carry on its business as presently conducted
and to enter into and perform its obligations under this
Agreement;
(2) The execution and delivery of this Agreement
by the Seller and the Seller's performance of and compliance
with the terms of this Agreement will not violate the Seller's
articles of incorporation or by-laws or constitute a default
(or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the breach or
acceleration of, any material contract, agreement or other
instrument to which the Seller is a party or which may be
applicable to the Seller or any of its assets;
(3) The Seller has the full power and authority
to enter into and consummate all transactions contemplated by
this Agreement to be consummated by it, has duly authorized
the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery
by the other parties hereto, constitutes a valid, legal and
binding obligation of the Seller, enforceable against it in
accordance with the terms hereof, except as such
8
enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally,
and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law);
(4) The Seller is not in violation of, and the
execution and delivery of this Agreement by the Seller and the
performance by it and compliance with the terms of this
Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having
jurisdiction, which violation would materially and adversely
affect the condition (financial or otherwise) or operations of
the Seller or any of its properties or materially and
adversely affect the performance of any of its duties
hereunder;
(5) There are no actions or proceedings against,
or investigations of, the Seller pending or, to the knowledge
of the Seller, threatened, before any court, administrative
agency or other tribunal (A) that, if determined adversely,
would prohibit its entering into this Agreement, (B) seeking
to prevent the consummation of any of the transactions
contemplated by this Agreement or (C) that, if determined
adversely, would prohibit or materially and adversely affect
the performance by the Seller of any of its obligations under,
or the validity or enforceability of, this Agreement;
(6) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the execution, delivery and performance by the Seller of, or
compliance by the Seller with, this Agreement, or for the
consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations
and orders, if any, that have been obtained prior to the
Closing Date;
(7) The Seller did not sell the Mortgage Loans
to the Purchaser with any intent to hinder, delay or defraud
any of its creditors; and the Seller will not be rendered
insolvent as a result of the sale of the Mortgage Loans to the
Purchaser;
(8) The Seller acquired title to the Mortgage
Loans in good faith, without notice of any adverse claim;
(9) No Officer's Certificate, statement, report
or other document prepared by the Seller and furnished or to
be furnished by it pursuant to this Agreement or in connection
with the transactions contemplated hereby contains any untrue
statement of material fact;
(10) The transfer, assignment and conveyance of
the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer laws or
any similar statutory provisions in effect in any applicable
jurisdiction;
9
(11) The transactions contemplated by this
Agreement are in the ordinary course of business of the
Seller; and
(12) The Seller has caused or hereby agrees to
cause to be performed any and all acts required to be
performed to preserve the rights and remedies of the Indenture
Trustee in any insurance policies applicable to the Mortgage
Loans, including, without limitation, any necessary
notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint
loss payee and mortgagee rights in favor of the Indenture
Trustee.
(c) AS TO EACH MORTGAGE LOAN:
(1) The information set forth on the Mortgage
Loan Schedule and the Prepayment Charge Schedule is complete,
true and correct as of the dates as of which the information
therein is given;
(2) The Mortgage Notes and the Mortgages have
not been assigned or pledged by the Seller to any Person other
than warehouse lenders, and immediately prior to the
transactions herein contemplated, the Seller had good and
marketable title thereto, and was the sole owner and holder of
the Mortgage Loans free and clear of any and all liens,
claims, encumbrances, participation interests, equities,
pledges, charges or security interests of any nature
(collectively, a "Lien"), other than any such Lien released
simultaneously with the sale contemplated herein, and had full
right and authority, subject to no interest or participation
of, or agreement with, any other party, to sell and assign the
same pursuant to this Agreement, and immediately upon the
transfer and assignment of each Mortgage Loan as contemplated
by this Agreement, the Trust will be the sole beneficial owner
of, each Mortgage Loan free and clear of any lien, claim,
participation interest, mortgage, security interest, pledge,
charge or other encumbrance or other interest of any nature;
(3) With respect to any Mortgage Loan that is
not a Cooperative Loan, each Mortgage is a valid and existing
lien on the property therein described, and each Mortgaged
Property is free and clear of all encumbrances and liens
having priority over the lien of the Mortgage, except (i)
liens for real estate taxes and special assessments not yet
due and payable, (ii) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as
of the date of recording such Mortgage, such exceptions
appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the
appraisal made in connection with the origination of the
related Mortgage Loan, (iii) other matters to which like
properties are commonly subject which do not materially
interfere with the benefits of the security intended to be
provided by such Mortgage, (iv) in the case of a Mortgaged
Property that is a condominium or an individual unit in a
planned unit development, liens for common charges permitted
by statute and (v) in the case of a Mortgage Loan secured by a
second lien on the related Mortgaged Property, the related
First Lien. Any security agreement, chattel mortgage or
equivalent document related to the Mortgage and
10
delivered to the Indenture Trustee or the Custodian on behalf
of the Indenture Trustee establishes in the Seller a valid and
subsisting lien on the property described therein, and the
Seller has full right to sell and assign the same to the
Trust;
(4) The terms of each Mortgage Note and Mortgage
have not been impaired, altered or modified in any respect,
except by a written instrument which has been recorded, if
necessary to protect the interests of the Trust, and which has
been delivered to the Indenture Trustee or the Custodian on
behalf of the Indenture Trustee. The substance of any such
alteration or modification is reflected on the Mortgage Loan
Schedule;
(5) No instrument of release or waiver has been
executed in connection with any Mortgage Loan, and no
Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement which has been
approved by the primary mortgage guaranty insurer, if any, and
which has been delivered to the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee;
(6) Except with respect to delinquencies
described in clause (12) hereof, no Mortgagor is in default in
complying with the terms of its Mortgage Note or Mortgage, and
the Seller has not waived any default, breach, violation or
event of acceleration except that the Seller may have accepted
late payments, and all taxes, governmental assessments,
insurance premiums or water, sewer and municipal charges which
previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay
for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not
advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly
or indirectly, for the payment of any amount required by the
Mortgage, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage
proceeds, whichever is more recent, to the day which precedes
by one (1) month the Due Date of the first installment of
principal and interest;
(7) There is no proceeding pending or threatened
for the total or partial condemnation of any Mortgaged
Property, nor is such a proceeding currently occurring, and
such property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or otherwise, so as to
affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the
premises were intended;
(8) There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and
no rights are outstanding that under law could give rise to
such lien) affecting any Mortgaged Property which are, or may
be, liens prior or equal to, or coordinate with, the lien of
the Mortgage except those that are stated in the title
insurance policy and for which related losses are
affirmatively insured against by such policy;
11
(9) All of the improvements that were included
for the purpose of determining the Appraised Value of each
Mortgaged Property lie wholly within the boundaries and
building restriction lines of such property, and no
improvements on adjoining properties encroach upon the
Mortgaged Property except those that are stated in the title
insurance policy and for which related losses are
affirmatively insured against by such policy;
(10) No improvement located on or being part of
any Mortgaged Property is in violation of any applicable
zoning law or regulation. All inspections, licenses and
certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including, but not
limited to, certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied
under applicable law;
(11) All parties that have had any interest in
any Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and
disposed of such interest, were) (1) in compliance with any
and all licensing requirements of the United States and of the
laws of the state wherein the Mortgaged Property is located
that are applicable to such parties and (2)(A) organized under
the laws of such state or (B) qualified to do business in such
state or exempt from such qualification in a manner so as not
to affect adversely the enforceability of such Mortgage Loan
or (C) federal savings and loan associations or national banks
having principal offices in such state or (D) not doing
business in such state;
(12) With respect to the Mortgage Loans, as of
the Cut-Off Date, (i) all payments required to be made on each
Mortgage Loan under the terms of the related Mortgage Note
have been made and none of the Mortgage Loans (by Cut-Off Date
Pool Balance) are 31 or more days delinquent, and (ii) no
payment required to be made on any Mortgage Loan has been more
than 30 to 59 days delinquent more than once during the twelve
(12) month period immediately preceding the Cut-Off Date;
(13) Each of the documents and instruments
included in a Mortgage File is duly executed and in due and
proper form and each such document or instrument is in a form
generally acceptable to prudent institutional mortgage lenders
that regularly originate or purchase mortgage loans;
(14) The Mortgage Notes and the related Mortgages
are genuine, and each is the legal, valid and binding
obligation of the maker thereof, enforceable in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity
principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law). All parties
to the Mortgage Note and the Mortgage had legal
12
capacity to execute the Mortgage Note and the Mortgage, and
each Mortgage Note and Mortgage have been duly and properly
executed by such parties. The Mortgagor is a natural person
who is a party to the Mortgage Note and the Mortgage in an
individual capacity, and not in the capacity of a trustee or
otherwise;
(15) Any and all requirements of any federal,
state or local law, including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure
laws, applicable to the origination and servicing of the
Mortgage Loans or otherwise applicable to the Mortgage Loans
have been complied with, and the Originator has and shall
maintain in its possession, available for the Indenture
Trustee's inspection, and shall deliver to the Indenture
Trustee upon demand, evidence of compliance with all such
requirements;
(16) Except for Escrow Repair Loans, the proceeds
of the Mortgage Loans have been fully disbursed, there is no
requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in making, closing or recording the Mortgage Loan
have been paid;
(17) Each Mortgage Loan is covered by an ALTA
mortgage title insurance policy or such other form of policy
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by and
constituting the valid and binding obligation of a title
insurer generally acceptable to prudent mortgage lenders that
regularly originate or purchase mortgage loans comparable to
the Mortgage Loans for sale to prudent investors in the
secondary market that invest in mortgage loans such as the
Mortgage Loans and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first
priority lien of the Mortgage in the case of a Mortgage Loan
secured by a First Lien on the related Mortgaged Property and
the second priority lien of the Mortgage in the case of a
Mortgage Loan secured by a second lien on the related
Mortgaged Property, in the original principal amount of the
Mortgage Loan. The Originator is the sole named insured of
such mortgage title insurance policy, the assignment to the
Indenture Trustee of the Seller's interest in such mortgage
title insurance policy does not require the consent of or
notification to the insurer or the same has been obtained, and
such mortgage title insurance policy is in full force and
effect and will be in full force and effect and inure to the
benefit of the Indenture Trustee upon the consummation of the
transactions contemplated by this Agreement. No claims have
been made under such mortgage title insurance policy and no
prior holder of the related Mortgage, including the Originator
and the Seller, has done, by act or omission, anything that
would impair the coverage of such mortgage title insurance
policy;
(18) All improvements upon the Mortgaged
Properties are insured by a generally acceptable insurer
against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged
13
Property is located pursuant to insurance policies conforming
to the requirements of this Agreement. If a Mortgaged Property
was, at the time of origination of the related Mortgage Loan,
in an area identified on a Flood Hazard Boundary Map or Flood
Hazard Rate Map issued by the Federal Emergency Management
Agency as having special flood hazards (and if the flood
insurance policy referenced herein has been made available), a
flood insurance policy is in effect with respect to such
Mortgaged Property with a generally acceptable carrier in an
amount representing coverage described in this Agreement. All
individual insurance policies (collectively, the "hazard
insurance policy") are the valid and binding obligation of the
insurer and contain a standard mortgagee clause naming the
Originator, its successors and assigns, as mortgagee. All
premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and upon the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's cost and expense
and to seek reimbursement therefor from the Mortgagor;
(19) No Mortgage Loan is subject to any right of
rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms
of any Mortgage Note or the related Mortgage, or the exercise
of any right thereunder in accordance with the terms thereof,
render either the Mortgage Note or the Mortgage unenforceable,
in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim
or defense has been asserted with respect thereto;
(20) Each Mortgage Loan was originated or
purchased and reunderwritten by the Originator;
(21) Except with respect to any interest-only
Mortgage Loan, each Mortgage Loan is payable in Monthly
Payments which would be sufficient, in the absence of late
payments, to fully amortize such loan within the term thereof,
beginning no later than sixty (60) days after disbursement of
the proceeds of the Mortgage Loan. With the exception of no
more than 1% of the Mortgage Loans which have interest rates
that may be reduced if the related Mortgagor makes timely
payments on such Mortgage Loan, each Mortgage Loan bears a
fixed interest rate for the term of the Mortgage Loan or an
adjustable-interest rate based on the related Loan Index;
(22) Each Mortgage contains a customary provision
for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the
holder thereunder;
(23) No Mortgage Loan is a construction loan;
14
(24) The Mortgage Notes are not and have not been
secured by any collateral, pledged account or other security
except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel
mortgage referred to in clause (3) above;
(25) Each Mortgage contains customary and
enforceable provisions which render the rights and remedies of
the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security, including
(i) in the case of a Mortgage designated as a deed of trust,
by trustee's sale and (ii) otherwise by judicial or
nonjudicial foreclosure. There is no homestead or other
exemption available to the Mortgagor that would interfere with
the right to sell the Mortgaged Property at a trustee's sale
or the right to foreclose the Mortgage;
(26) With respect to each Mortgage constituting a
deed of trust, a trustee, duly qualified under applicable law
to serve as such, has been properly designated and currently
so serves and is named in such Mortgage, and no fees or
expenses are or will become payable by the Indenture Trustee
or the Noteholders to the Indenture Trustee under the deed of
trust, except in connection with a trustee's sale after
default by the Mortgagor, which fees and expenses shall
constitute Servicing Advances;
(27) Each Mortgaged Property is located in the
state identified in the Mortgage Loan Schedule. No residence
or dwelling is a manufactured dwelling that is not treated as
real property under local law. No Mortgaged Properties are
held under a ground lease;
(28) The Mortgage Loans were underwritten in
accordance with the Originator's underwriting guidelines
described in the Prospectus under the heading "The
Seller--Loan Underwriting";
(29) There exist no deficiencies with respect to
escrow deposits and payments, if such are required, for which
customary arrangements for repayment thereof have not been
made, and no escrow deposits or payments of other charges or
payments due the Seller have been capitalized under any
Mortgage or the related Mortgage Note;
(30) No Mortgage Loan was originated under a
buy-down plan;
(31) Other than as provided by this Agreement,
there is no obligation on the part of the Seller or any other
party to make payments in addition to those made by the
Mortgagors;
(32) With respect to each Mortgage Loan, the
Seller is in possession of a complete Mortgage File, except
those documents delivered to the Indenture Trustee or
Custodian on behalf of the Indenture Trustee, and there are no
15
custodial agreements in effect adversely affecting the right
or ability of the Seller to make the document deliveries
required hereby;
(33) No Mortgage Loan was selected for inclusion
under this Agreement on any basis which was intended to have a
material adverse effect on the Noteholders;
(34) No Mortgage Loan has a shared appreciation
or other contingent interest feature;
(35) With respect to each Mortgage Loan secured
by a second lien on the related Mortgaged Property: (a) the
related First Lien does not provide for negative amortization;
and (b) either no consent for the Mortgage Loan secured by a
second lien on the related Mortgaged Property is required by
the holder of the related First Lien or such consent has been
obtained and is contained in the Mortgage File;
(36) Each Mortgage Loan conforms, and all the
Mortgage Loans in the aggregate conform, in all material
respects to the description thereof set forth in the
Prospectus Supplement;
(37) A full appraisal on forms approved by Xxxxxx
Mae or Xxxxxxx Mac or on a report of an insured automated
valuation model of the related Mortgaged Property was
performed in connection with the origination of each Mortgage
Loan. Each appraisal or insured automation valuation model
report meets guidelines that would be generally acceptable to
prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to
prudent investors in the secondary market that invest in
mortgage loans such as the Mortgage Loans;
(38) To the best of the Seller's knowledge, no
Mortgaged Property was, as of the related Cut-Off Date,
located within a one-mile radius of any site listed in the
National Priorities List as defined under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended, or on any similar state list of hazardous
waste sites which are known to contain any hazardous substance
or hazardous waste;
(39) None of the Mortgage Loans are subject to a
bankruptcy proceeding;
(40) Each Cooperative Loan is secured by a valid,
subsisting and enforceable perfected first lien and security
interest in the related Mortgaged Property, subject only to
(i) the rights of the Cooperative Corporation to collect
Maintenance and assessments from the Mortgagor, (ii) the lien
of the Blanket Mortgage, if any, on the Cooperative Property
and of real property taxes, water and sewer charges, rents and
assessments on the Cooperative Property not yet due and
payable, and (iii) other matters to which like Cooperative
Units are
16
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the
Security Agreement or the use, enjoyment, value or
marketability of the Cooperative Unit. Each original UCC
financing statement, continuation statement or other
governmental filing or recordation necessary to create or
preserve the perfection and priority of the first priority
lien and security interest in the Cooperative Shares and
Proprietary Lease has been timely and properly made. Any
security agreement, chattel mortgage or equivalent document
related to the Cooperative Loan and delivered to the Seller or
its designee establishes in the Seller a valid and subsisting
perfected first lien on and security interest in the property
described therein, and the Seller has full right to sell and
assign the same;
(41) Each Cooperative Corporation qualifies as a
"cooperative housing corporation" as defined in Section 216 of
the Code;
(42) Each adjustable-rate Mortgage Loan is
secured by a first lien, and each fixed-rate Mortgage Loan is
secured by a first or second lien;
(43) No Mortgage Loan was subject to (i) the Home
Ownership and Equity Protection Act of 1994, (ii) the
regulations promulgated by the New York State Banking
Department (3 NYCRR Part 41), or (iii) except as set forth in
clause (48) below, any other comparable regulations or
legislation enacted by any other State or regulatory body;
(44) Any Mortgage Loan that is subject to the
regulations promulgated by the Illinois Office of Banks and
Real Estate and the Department of Financial Institutions
(Title 38 Chapter II Section 1050.155) or the regulations
promulgated by the Vermont Commissioner of Banking (Vermont
Stat. Xxx. Title 9, Subsection 104, Reg. B-98-2) is in full
compliance therewith as of the Closing Date;
(45) With respect to each Mortgage Loan that has
a Prepayment Charge feature, each such Prepayment Charge is
enforceable (except to the extent that the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws affecting creditor's
rights generally or the collectability thereof may be limited
due to acceleration in connection with a foreclosure) and each
Prepayment Charge is permitted pursuant to applicable federal,
state and local law, subject to federal preemption where
applicable;
(46) Each Mortgage Loan at the time it was made
complied in all material respects with applicable local, state
and federal laws, including, but not limited to, all
applicable high cost (e.g., predatory and abusive) lending
laws;
(47) Each Mortgage Loan in Loan Group II bears
interest at a fixed rate for the life of the Mortgage Loan;
17
(48) No Mortgage Loan is a High Cost Home Loan
and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending
Act; and
(49) No Mortgage Loan is a high cost loan or a
covered loan, as applicable (as such terms are defined in the
then current Standard & Poor's LEVELS Version 5.6(b) Glossary
Revised, Appendix E).
It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Mortgage Files to the Indenture Trustee or the Custodian on behalf of
the Indenture Trustee and the termination of the rights and obligations of the
Servicer pursuant to the Servicing Agreement. Upon discovery by the Seller, the
Depositor, the Servicer, the Master Servicer or a Responsible Officer of the
Indenture Trustee or the Securities Administrator of a breach of any of the
foregoing representations and warranties, which materially and adversely affects
the value of, or the interests of the Trust or the Noteholders in, the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties. Within sixty (60) days of its discovery or its
receipt of notice of breach, the Originator shall use all reasonable efforts to
cure such breach in all material respects or shall purchase such Mortgage Loan
from the Trust or substitute an Eligible Substitute Mortgage Loan as provided in
Section 3.2 for such Mortgage Loan. Any such purchase by the Seller shall be at
the Purchase Price, and in each case shall be accomplished in the manner set
forth in Section 2.1(f). It is understood and agreed that the obligation of the
Seller to cure, substitute or purchase any Mortgage Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy against
the Seller respecting such breach available to the Servicer (in its role as
such), the Master Servicer (in its role as such), the Noteholders, the
Securities Administrator or the Indenture Trustee on behalf of Noteholders. In
addition, on any Payment Date the Seller may, at its option, repurchase Mortgage
Loans from the Trust (which such Mortgage Loans shall not be adversely
selected), provided that such option shall terminate after the Seller has
repurchased Mortgage Loans in the aggregate amount of 1% of the Cut-off Date
Pool Balance. Any such repurchase by the Seller shall be at the Purchase Price,
and in each case shall be accomplished in the manner set forth in Section
2.1(f).
Upon discovery by the Servicer, the Seller, the Depositor, the
Master Servicer or a Responsible Officer of the Indenture Trustee or the
Securities Administrator of a breach of the representation set forth in Section
3.1(c)(45) which materially and adversely affects the Holders of the NIMs Notes,
the party discovering such breach shall give prompt written notice to the
Originator. Within 60 days of the earlier of discovery by the Servicer, the
Depositor, Master Servicer or the Seller, as applicable, or receipt of notice by
the Originator of such breach, the Originator shall cure such breach in all
material respects and pay to the Servicer for deposit into the Collection
Account the amount of the scheduled Prepayment Charge, less any amount
previously collected and paid by the Servicer into the Collection Account.
Section 3.2 SUBSTITUTION OF MORTGAGE LOANS. On or before the
date on which the Seller would otherwise be required to repurchase a Mortgage
Loan under Section 2.1(f) or 3.1, the Seller may deliver to the Indenture
Trustee or the Custodian on behalf of the Indenture Trustee one or more Eligible
Substitute Mortgage Loans in substitution for any one or more of
18
the Defective Mortgage Loans which the Seller would otherwise be required to
repurchase pursuant to Section 2.1(f) or 3.1.
The Seller shall notify the Servicer, the Master Servicer, the
Securities Administrator and the Indenture Trustee in writing not less than five
(5) Business Days before the related Determination Date which is on or before
the date on which the Seller would otherwise be required to repurchase such
Mortgage Loan pursuant to Section 2.1(f) or 3.1 of its intention to effect a
substitution under this Section 3.2. On such Determination Date (the
"Substitution Date"), the Seller shall deliver to the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee (1) the Eligible Substitute
Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of
the Defective Mortgage Loans to be substituted for by such Eligible Substitute
Mortgage Loans, (3) an Officer's Certificate (A) stating that the aggregate
Principal Balance of all Eligible Substitute Mortgage Loans (determined with
respect to each Eligible Substitute Mortgage Loan as of the Determination Date
on which it was substituted) including the principal balance of Eligible
Substitute Mortgage Loans being substituted on such Determination Date does not
exceed an amount equal to 5% of the aggregate Original Class Principal Balance
as of the Closing Date, (B) stating that all conditions precedent to such
substitution specified in the immediately preceding paragraph have been
satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the
"Supplemental Mortgage Loan Schedule") setting forth the same type of
information as appears on the Mortgage Loan Schedule and representing as to the
accuracy thereof and (C) confirming that the representations and warranties
contained in Section 3.1 are true and correct in all material respects with
respect to the Eligible Substitute Mortgage Loans on and as of such
Determination Date, PROVIDED that remedies for the inaccuracy of such
representations are limited as set forth in Sections 2.1(f), 3.1 and this
Section 3.2 and (4) a certificate stating that cash in the amount of the related
Substitution Adjustment, if any, has been delivered to the Servicer for deposit
in the Collection Account. Upon receipt of the foregoing, pursuant to Section
3.07 of the Servicing Agreement, the Indenture Trustee or the Custodian on
behalf of the Indenture Trustee shall release such Defective Mortgage Loans to
the Seller.
Concurrently with the satisfaction of the conditions set forth
in the immediately preceding paragraphs and the transfer of such Eligible
Substitute Mortgage Loans to the Indenture Trustee pursuant to Section 2.1, the
Mortgage Loan Schedule shall be deemed to be amended to exclude all Mortgage
Loans being replaced by such Eligible Substitute Mortgage Loans and to include
the information set forth on the Supplemental Mortgage Loan Schedule with
respect to such Eligible Substitute Mortgage Loans, and all references in this
Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage
Loans and be deemed to be made on or after the related Substitution Date, as the
case may be, as to such Eligible Substitute Mortgage Loans.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 COVENANTS OF THE SELLER. The Seller hereby
covenants that, except for the transfer hereunder with respect to the Mortgage
Loans, the Seller will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur or assume any Lien on, any
19
Mortgage Loan, whether now existing or hereafter created, or any interest
therein; the Seller will notify the Issuer, as assignee of the Purchaser, of the
existence of any Lien (other than as provided above) on any Mortgage Loan
immediately upon discovery thereof; and the Seller will defend the right, title
and interest of each of the Issuer and the Indenture Trustee, as assignee of the
Purchaser and the Issuer, respectively, in, to and under the Mortgage Loans,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Seller.
ARTICLE V
INDEMNIFICATION BY THE ORIGINATOR
Section 5.1 INDEMNIFICATION. The Originator shall indemnify
and hold harmless each of (i) the Purchaser, (ii) the Underwriters, (iii) the
Person, if any, to which the Purchaser assigns its rights in and to a Mortgage
Loan and each of their respective successors and assigns and (iv) each person,
if any, who controls the Purchaser within the meaning of Section 15 of the
Securities Act of 1933, as amended (the "1933 Act") ((i) through (iv)
collectively, the "Indemnified Party") against any and all losses, claims,
expenses, damages or liabilities to which the Indemnified Party may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement or the omission or the
alleged omission to state therein the material fact necessary in order to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with (i)
information furnished in writing to the Purchaser or any of its affiliates by
the Originator or any of its affiliates specifically for use therein, which
shall include, with respect to the Prospectus Supplement, the information set
forth under the captions "Summary--The Mortgage Loans," "Risk Factors" (to the
extent of information concerning the Mortgage Loans contained therein),
"Description of the Mortgage Loans", or (ii) the data files containing
information with respect to the Mortgage Loans as transmitted to the Purchaser
by the Originator or any of its affiliates (as such transmitted information may
have been amended in writing by the Originator or any of its affiliates with the
written consent of the Purchaser subsequent to such transmission), (b) any
representation, warranty or covenant made by the Originator or any affiliate of
the Originator herein or in the Servicing Agreement, on which the Purchaser has
relied, being, or alleged to be, untrue or incorrect or (c) any updated
collateral information provided by any Underwriter to a purchaser of the Notes
or Certificates derived from the data contained in clause (ii) and the
Remittance Report or a current collateral tape obtained from the Originator or
an affiliate of the Originator, including the current principal balances of the
Mortgage Loans; provided, however, that to the extent that any such losses,
claims, expenses, damages or liabilities to which the Indemnified Party may
become subject arise out of or are based upon both (1) statements, omissions,
representations, warranties or covenants of the Seller described in clause (a),
(b) or (c) above and (2) any other factual basis, the Originator shall indemnify
and hold harmless the Indemnified Party only to the extent that the losses,
claims, expenses, damages, or liabilities of the person or persons asserting the
claim are determined to rise from or be based upon matters set forth in clause
(1) above and do not result from the negligence or willful misconduct of such
20
Indemnified Party. This indemnity shall be in addition to any liability that the
Originator may otherwise have.
Section 5.2 LIMITATION ON LIABILITY OF THE ORIGINATOR AND THE
SELLER. The Originator and the Seller shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by the Originator or Seller, as the case may be, herein. Neither the Originator,
the Seller nor any of the directors or officers or employees or agents of the
Originator or the Seller shall be under any liability to the Trust or the
Noteholders for any action taken or for refraining from the taking of any action
by the Seller or the Originator in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Originator or the Seller or any such Person against any liability which would
otherwise be imposed by reason of its willful misfeasance, bad faith or
negligence in the performance of duties of the Originator or the Seller or by
reason of its reckless disregard of its obligations and duties of the Originator
or the Seller hereunder. The Originator or the Seller and any director or
officer or employee or agent of the Originator or the Seller 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 Originator or the
Seller and any director or officer or employee or agent of any such party shall
be indemnified by the Trust and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Notes, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of its reckless
disregard of obligations and duties hereunder. The Originator or the Seller
shall be under no obligation to appear in, prosecute or defend any legal action
that is not incidental to its duties hereunder and that in its opinion, may
involve it in any expense or liability; provided, however, that the Seller and
the Originator may undertake any such action which it may deem necessary or
desirable in respect of this Agreement, and the rights and duties of the parties
hereto and the interests of the Noteholders hereunder. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust.
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the Originator's indemnity obligations as provided herein, upon the
termination of the Issuer pursuant to the terms of the Trust Agreement.
ARTICLE VII
ADMINISTRATIVE DUTIES
Section 7.1 ADMINISTRATIVE DUTIES.
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(a) DUTIES WITH RESPECT TO THE INDENTURE. The Originator
(in such capacity, the "Administrator") shall perform all its duties and the
duties of the Issuer under the Indenture. In addition, the Administrator shall
consult with the Owner Trustee as the Administrator deems appropriate regarding
the duties of the Issuer under the Indenture. The Administrator shall monitor
the performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the Issuer's duties under the Indenture. The
Administrator shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of
the foregoing, the Administrator shall take all necessary action that is the
duty of the Issuer to take pursuant to the Indenture.
(b) DUTIES WITH RESPECT TO THE ISSUER.
(i) In addition to the duties of the Administrator set
forth in this Agreement or any of the Basic Documents, the Administrator shall
perform such calculations and shall prepare for execution by the Issuer or the
Owner Trustee or shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Agreement or any of the Basic Documents or under state and
federal tax and securities laws (including, but not limited to, UCC filings in
applicable jurisdictions and annual compliance certificates, if any), and at the
request of the Owner Trustee, the Indenture Trustee or the Securities
Administrator shall take all appropriate action that it is the duty of the
Issuer to take pursuant to this Agreement or any of the Basic Documents. In
accordance with the directions of the Issuer or the Owner Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Notes (including the Basic Documents) as
are not covered by any of the foregoing provisions and as are expressly
requested by the Issuer, the Indenture Trustee, the Securities Administrator or
the Owner Trustee.
(ii) Notwithstanding anything in this Agreement or any of
the Basic Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee and Certificate Paying Agent in the event
that any withholding tax is imposed on the Issuer's payments (or allocations of
income) to an Owner (as defined in the Trust Agreement) as contemplated in
Section 5.03 of the Trust Agreement. Any such notice shall be in writing and
specify the amount of any withholding tax required to be withheld by the Owner
Trustee or the Certificate Paying Agent pursuant to such provision.
(iii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer in any material respect
than with terms made available to unrelated third parties.
(c) TAX MATTERS. The Administrator shall prepare, on
behalf of the Owner Trustee, tax returns and information reports as required by
the Code. The Administrator shall
22
also prepare financial statements and such annual or other reports of the Issuer
as are necessary for the Securities Administrator to prepare a Form 1099.
(d) NON-MINISTERIAL MATTERS. With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action pursuant to this Article VIII unless
within a reasonable time before the taking of such action, the Administrator
shall have notified the Owner Trustee, the Indenture Trustee and the Securities
Administrator of the proposed action and the Owner Trustee and, with respect to
items (A), (B), (C) and (D) below, the Indenture Trustee and the Securities
Administrator shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include:
(1) the amendment of or any supplement to the
Indenture;
(2) the initiation of any claim or lawsuit by
the Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Mortgage Loans);
(3) the amendment, change or modification of
this Agreement or any of the Basic Documents to which the
Indenture Trustee, the Securities Administrator or the Owner
Trustee, as applicable, is a party;
(4) the appointment of successor Certificate
Paying Agents and successor Indenture Trustees or Securities
Administrator pursuant to the Indenture or the appointment of
a successor Servicer or Master Servicer or the consent to the
assignment by the Certificate Registrar, Paying Agent,
Indenture Trustee or Securities Administrator of its
obligations under the Indenture; and
(5) the removal of the Indenture Trustee or the
Securities Administrator.
(e) ORIGINATOR SHALL ACT AS ADMINISTRATOR. By execution
of this Agreement, the Originator agrees to be bound as Administrator and shall
perform the obligations of the Administrator as described herein.
23
Section 7.2 RECORDS. The Administrator shall maintain
appropriate books of account and records relating to services performed under
this Agreement, which books of account and records shall be accessible for
inspection by the Issuer, the Indenture Trustee, the Securities Administrator
and the Owner Trustee at any time during normal business hours.
Section 7.3 ADDITIONAL INFORMATION TO BE FURNISHED. The
Administrator shall furnish to the Issuer, the Indenture Trustee, the Securities
Administrator and the Owner Trustee from time to time such additional
information regarding the Mortgage Loans and the Notes as the Issuer, the
Indenture Trustee, the Securities Administrator or the Owner Trustee shall
reasonably request.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 AMENDMENT. This Agreement may be amended from time
to time by the Seller and the Purchaser by written agreement signed by the
Seller and the Purchaser, which consent shall not be unreasonably withheld;
provided, however, that any amendment of Article VII of this Agreement shall
require the consent of the Issuer and the Owner Trustee.
Section 8.2 GOVERNING LAW. This Agreement shall be governed by
and 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.
Section 8.3 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
delivered addressed as follows:
(i) if to the Seller:
Renaissance REIT Investment Corp.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
(ii) if to the Purchaser:
Renaissance Mortgage Acceptance Corp.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
(iii) if to the Originator:
Delta Funding Corporation
0000 Xxxxxxxx Xxxx
00
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
(iv) if to the Owner Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(v) if to the Issuer:
Renaissance Home Equity Loan Trust Series
2005-1
c/o Delta Funding Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
(vi) if to the Securities Administrator:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services--
Renaissance HEL Trust 2005-1
(vi) if to the Indenture Trustee:
HSBC Bank USA, N.A.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust/Renaissance HEL
Trust 2005-1
25
Section 8.4 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 8.5 RELATIONSHIP OF PARTIES. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties hereto, and the services of the Seller shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 8.6 COUNTERPARTS. This Agreement may be executed in
two 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
and such counterparts together shall constitute one and the same agreement.
Section 8.7 FURTHER AGREEMENTS. The Purchaser, the Originator
and the Seller each agree to execute and deliver to the other such additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section 8.8 INTENTION OF THE PARTIES. The Seller and the
Purchaser agree that it is their intention that the sale of the Mortgage Loans
to the Purchaser, and the Purchaser's sale of the Mortgage Loans to the Issuer
pursuant to the Trust Agreement shall be treated for federal, stated and local
tax purposes as a transfer directly by the Seller to the Issuer (with the
Issuer's issuance of the Notes treated for federal, state and local tax purposes
as the issuance by the Seller of indebtedness secured by the Mortgage Loans) and
mutually covenant to report this and all related transactions for all federal,
stated and local tax reporting purposes in a manner consistent with that intent.
The Purchaser will have the right to review the Mortgage Loans and the Related
Documents to determine the characteristics of the Mortgage Loans which will
affect the federal, stated and local tax consequences of owning the Mortgage
Loans and the Seller will cooperate with all reasonable requests made by the
Purchaser in the course of such review.
Section 8.9 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT. This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller, the Originator, the Purchaser and their respective
successors and assigns. The obligations of the Seller and the Originator under
this Agreement cannot be assigned or delegated to a third party without the
consent of the Purchaser, which consent shall be at the Purchaser's sole
discretion. The parties hereto acknowledge that (i) the Purchaser is acquiring
the Mortgage Loans for the purpose of selling them to the Issuer who will in
turn pledge the Mortgage Loans to the Indenture Trustee for the benefit of the
Noteholders and (ii) the Purchaser is acquiring the rights with respect to the
Group I Interest Rate Cap Agreement and the NIMs Interest Rate Cap Agreement for
the purpose of transferring them to the Issuer who will in turn assign these
rights to the Indenture Trustee for the benefit of the Noteholders. As an
inducement to the Purchaser to purchase the Mortgage Loans, the Seller and the
Originator acknowledge and consent to (i) the assignment by the Purchaser to the
Issuer of all of the Purchaser's rights against the Seller and the Originator
pursuant to this Agreement and to the enforcement or exercise of any right or
remedy against the Seller and the Originator pursuant to this Agreement as
assigned by the Purchaser and (ii) the assignment by the Issuer to the Indenture
Trustee of such rights and to the enforcement or
26
exercise of any right or remedy by the Indenture Trustee, or the Servicer or the
Master Servicer acting pursuant to the Servicing Agreement, against the Seller
and the Originator pursuant to this Agreement as assigned by the Issuer. Such
enforcement of a right or remedy by the Issuer, the Owner Trustee, the Servicer,
the Master Servicer, the Securities Administrator or the Indenture Trustee, as
applicable, shall have the same force and effect as if the right or remedy had
been enforced or exercised by the Purchaser directly.
Section 8.10 SURVIVAL. The representations and warranties made
herein by the Seller and the Originator and the provisions of Article V hereof
shall survive the purchase of the Mortgage Loans hereunder.
Section 8.11 THIRD PARTY BENEFICIARY. Each of the Indenture
Trustee, the Owner Trustee and the Issuer shall be deemed a third-party
beneficiary of this Agreement to the same extent as if it were a party hereto,
and shall have the right to enforce the provisions of this Agreement.
27
IN WITNESS WHEREOF, the Seller, the Originator and the
Purchaser have caused their names to be signed to this Mortgage Loan Sale and
Contribution Agreement by their respective officers thereunto duly authorized as
of the day and year first above written.
RENAISSANCE MORTGAGE ACCEPTANCE CORP.
as Purchaser
By:
-------------------------------------
Name:
Title:
RENAISSANCE REIT INVESTMENT CORP.
as Seller
By:
-------------------------------------
Name:
Title:
DELTA FUNDING CORPORATION
as Originator
By:
-------------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(FILED MANUALLY)
B-1