WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer and THORNBURG MORTGAGE HOME LOANS, INC., as Seller and THORNBURG MORTGAGE HOME LOANS, INC., as Servicer SERVICING AGREEMENT Dated as of March 1, 2002
EXECUTION
XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as
Master
Servicer
and
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Seller
and
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Servicer
_____________________________
Dated
as
of March 1, 2002
_____________________________
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Page
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ARTICLE
I. DEFINITIONS
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2
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ARTICLE
II. PASS- THROUGH TRANSFERS; SELLER’S ENGAGEMENT OF SERVICER TO PERFORM
SERVICING RESPONSIBILITIES
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14
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Section
2.01
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Pass-Through
Transfers.
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14
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Section
2.02
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Contract
for Servicing; Possession of Servicing Files.
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14
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Section
2.03
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Books
and Records.
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15
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ARTICLE
III. SERVICING OF THE SECURITIZED LOANS
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16
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Section
3.01
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Servicer
to Service.
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16
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Section
3.02
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Collection
of Securitized Loan Payments.
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17
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Section
3.03
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Establishment
of and Deposits to Custodial Account.
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17
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Section
3.04
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Permitted
Withdrawals From Custodial Account.
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19
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Section
3.05
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Establishment
of and Deposits to Escrow Account.
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21
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Section
3.06
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Permitted
Withdrawals From Escrow Account.
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21
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Section
3.07
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Restoration
of Mortgaged Property.
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22
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Section
3.08
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Fidelity
Bond and Errors and Omissions Insurance.
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23
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Section
3.09
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Notification
of Adjustments.
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23
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Section
3.10
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Payment
of Taxes, Insurance and Other Charges.
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24
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Section
3.11
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Protection
of Accounts.
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24
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Section
3.12
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Title,
Management and Disposition of REO Property.
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25
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Section
3.13
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Real
Estate Owned Reports.
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27
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Section
3.14
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MERS.
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27
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Section
3.15
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Waiver
of Prepayment Penalties.
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27
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Section
3.16
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Servicing
and Administration of PMI Policies.
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28
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Section
3.17
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Maintenance
of Hazard Insurance.
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29
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Section
3.18
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Realization
Upon Defaulted Securitized Loans.
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30
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Section
3.19
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Enforcement
of Due-On-Sale Clauses; Assumption Agreement.
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30
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Section
3.20
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Credit
Risk Manager.
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31
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ARTICLE
IV. PAYMENTS TO MASTER SERVICER
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32
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Section
4.01
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Remittances.
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32
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Section
4.02
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Statements
to Master Servicer.
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32
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Section
4.03
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Monthly
Advances by Servicer.
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33
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Section
4.04
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Compensating
Interest.
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34
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Section
4.05
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Credit
Reporting.
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34
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ARTICLE
V. GENERAL SERVICING PROCEDURES
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34
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Section
5.01
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Servicing
Compensation.
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34
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Section
5.02
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Annual
Audit Report.
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35
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Section
5.03
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Annual
Officer’s Certificate.
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35
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ARTICLE
VI. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS
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36
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Section
6.01
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Representations,
Warranties and Agreements of the Servicer.
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36
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-i-
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Section
6.02
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Remedies
for Breach of Representations and Warranties of the
Servicer.
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37
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Section
6.03
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Additional
Indemnification by the Servicer; Third Party Claims.
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38
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Section
6.04
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Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
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39
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ARTICLE
VII. THE SERVICER
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39
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Section
7.01
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Merger
or Consolidation of the Servicer.
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39
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Section
7.02
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Limitation
on Liability of the Servicer and Others.
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40
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Section
7.03
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Limitation
on Resignation and Assignment by the Servicer.
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40
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Section
7.04
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Sub-Servicing
Agreements; Sub-Servicing Acknowledgment Agreement; Successor
Sub-Servicer.
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41
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Section
7.05
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Inspection.
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42
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ARTICLE
VIII. TERMINATION
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42
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Section
8.01
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Termination
for Cause.
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42
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Section
8.02
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Termination
Without Cause.
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44
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ARTICLE
IX. MISCELLANEOUS PROVISIONS
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44
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Section
9.01
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Successor
to the Servicer.
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44
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Section
9.02
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Costs.
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46
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Section
9.03
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Notices.
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47
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Section
9.04
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Severability
Clause.
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48
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Section
9.05
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No
Personal Solicitation.
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48
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Section
9.06
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Counterparts.
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48
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Section
9.07
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Place
of Delivery and Governing Law.
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49
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Section
9.08
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Further
Agreements.
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49
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Section
9.09
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Intention
of the Parties.
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49
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Section
9.10
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Successors
and Assigns; Assignment of Servicing Agreement.
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49
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Section
9.11
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Assignment
by Seller.
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49
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Section
9.12
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Amendment.
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49
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Section
9.13
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Waivers.
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50
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Section
9.14
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Exhibits.
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50
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Section
9.15
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Intended
Third Party Beneficiary.
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50
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Section
9.16
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Confidentiality.
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50
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Section
9.17
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General
Interpretive Principles.
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51
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Section
9.18
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Reproduction
of Documents.
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52
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EXHIBITS
& SCHEDULES
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EXHIBIT
A
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Form
of Transfer Notice
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EXHIBIT
B
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Form
of Custodial Account Letter Agreement
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EXHIBIT
C
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Form
of Escrow Account Letter Agreement
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EXHIBIT
D
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Master
Servicer Data Field Requirements and Calculation of Realized
Loss
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-ii-
THIS
SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st day of March,
2002, by and among XXXXXXXXX MORTGAGE HOME LOANS, INC., a Delaware corporation
(“TMHL”), in its capacity as seller (the “Seller”), TMHL, in its capacity as
servicer (the “Servicer”) and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as master servicer (the “Master Servicer”), recites and provides as
follows:
RECITALS
WHEREAS,
TMHL owns and services certain residential Mortgage Loans (the “Mortgage
Loans”);
WHEREAS,
CENLAR FSB, a federal savings bank (the “Sub-Servicer”) sub-services certain of
the Mortgage Loans for TMHL pursuant to that certain Sub-Servicing Agreement,
dated as of February 22, 2000, by and between XXXXXXXXX MORTGAGE, INC. (“TMI”)
and the Sub-Servicer, as amended by that certain Amendment to Sub-Servicing
Agreement, dated as of October 31, 2000, by and among TMI, the Sub-Servicer
and
TMHL (the Sub-Servicing Agreement, together with the Amendment to Sub-Servicing
Agreement, shall collectively be referred to hereinafter as the “Superseded
Sub-Servicing Agreement”);
WHEREAS,
TMHL, as Seller, from time to time may convey certain of the Mortgage Loans,
on
a servicing-retained basis, to one or more Trusts, as defined herein, under
one
or more Trust Agreements, as defined herein, in connection with a Pass-Through
Transfer, as defined herein, with Xxxxx Fargo Bank Minnesota, National
Association as the Master Servicer;
WHEREAS,
upon the Effective Date, as defined herein, of any such Pass-Through Transfer,
the Mortgage Loans shall become Securitized Loans, as defined
herein;
WHEREAS,
in connection with any such Pass-Through Transfer, the Seller and the Master
Servicer desire that the Servicer service any Securitized Loans pursuant
to this
Agreement, and the Servicer has agreed to do so, subject to the rights of
the
Seller and the Master Servicer to terminate the rights and obligations of
the
Servicer hereunder as provided herein;
WHEREAS,
the Master Servicer shall be obligated under each Trust Agreement, among
other
things, to supervise the servicing of the Securitized Loans subject to the
Trust
Agreement on behalf of the related Trust, and shall have the right to terminate
the rights and obligations of the Servicer under this Agreement or under
the
Agreement relating to specified Securitized Loans upon the occurrence and
continuance of an Event of Default as provided herein;
WHEREAS,
the Seller, the Servicer and the Master Servicer intend that each Trustee
be a
third party beneficiary of this Agreement;
WHEREAS,
the Seller and the Servicer acknowledge and agree that the Seller will assign
all of its rights and delegate all of its obligations hereunder with regard
to
specified Securitized Loans (exclusive of the Seller’s rights and obligations as
owner of the servicing rights relating to such Securitized Loans) to the
related
Trust or Trustee, and that each reference herein to the Seller with regard
to
specified Securitized Loans is intended, unless otherwise specified, to mean
the
Seller or such Trust or Trustee, as assignee of the specified Securitized
Loans;
-1-
WHEREAS,
this Agreement shall supersede the Superseded Servicing Agreement in its
entirety with respect to any Securitized Loans;
WHEREAS,
the parties hereto mutually acknowledge and agree that, pursuant to Section
7.04
of this Agreement, the Sub-Servicer will contemporaneously herewith enter
into a
Sub-Servicing Acknowledgment Agreement (the “Sub-Servicing Agreement”) of even
date herewith, pursuant to which the Sub-Servicer will sub-service the
Securitized Loans on behalf of the Servicer in accordance with the terms
of this
Agreement and will have the benefit of certain rights of the Servicer under
this
Agreement, other than those under Section 7.04 hereof.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Master Servicer, the Seller and the Servicer hereby
agree as follows:
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows (except as otherwise agreed in writing
by
the parties):
Accepted
Servicing Practices:
With
respect to any Securitized Loan, those mortgage servicing practices that
prudent
mortgage lending institutions would employ in servicing their own portfolio
of
mortgage loans of the same type as the Securitized Loans in the jurisdiction
where the related Mortgaged Property is located.
Adjustable
Rate Securitized Loan:
A
Securitized Loan under which the Mortgage Interest Rate is adjusted from
time to
time in accordance with the terms and provisions of the related Mortgage
Note.
Adverse
REMIC Event:
Taking
(or causing to be taken) any action, or failure to take (or failure to cause
to
be taken) any action, that, under the REMIC Provisions, if taken or not taken,
as the case may be, could (i) endanger the status of such REMIC as a REMIC
or
(ii) result in the imposition of a tax upon such REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code and the tax on prohibited contributions set forth on Section
860G(d)
of the Code).
Advancing
Person:
As
defined in Section 4.03 hereof.
Agreement:
This
Servicing Agreement and all amendments hereof and supplements
hereto.
Ancillary
Income:
All
income derived from the Securitized Loans (other than the (i) Servicing Fee
or (ii) Prepayment Charges or Servicer Prepayment Charge Payment Amounts
attributable to the Securitized Loans), including but not limited to late
charges, penalty interest, any interest paid on funds deposited in the Custodial
Account and Escrow Account (other than interest on escrowed funds required
by
law to be paid to the Mortgagor), fees received with respect to checks or
bank
drafts returned by the related bank for non-sufficient funds, assumption
fees,
modification fees, optional insurance administrative fees and all other
incidental fees and charges.
-2-
Assignment
of Mortgage:
An
assignment of a Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of such Mortgage
to the party indicated therein, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Securitized Loans secured by Mortgaged Properties located in
the
same jurisdiction, if permitted by law.
Balloon
Securitized Loan:
Any
Securitized Loan that by its original terms or by virtue of any modification
provides for an amortization schedule extending beyond its originally scheduled
Maturity Date and which has a final scheduled payment that is proportionately
large in comparison to other scheduled payments.
Balloon
Payment:
The
final scheduled payment in respect of a Balloon Securitized Loan.
Business
Day:
Any day
other than (i) a Saturday or Sunday or (ii) a day on which banking and savings
and loan institutions in the States of California, New York, Maryland, New
Mexico, Minnesota and, with respect to any Trust, the jurisdiction in which
the
related Trustee conducts its trust business, are authorized or obligated
by law
or executive order to be closed.
Certificates:
Any or
all of the certificates or other securities issued pursuant to a Trust
Agreement.
Certificate
Registrar:
The
registrar appointed pursuant to the Trust Agreement.
Closing
Date:
The
actual date of closing of any Pass-Through Transfer, without regard to the
Effective Date thereof.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Condemnation
Proceeds:
All
awards of settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Securitized Loan
documents.
Conventional
Loan:
A
conventional residential first or second lien fixed or adjustable rate
Securitized Loan that is neither FHA insured nor VA guaranteed.
Costs:
For any
Person, any claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses of such Person.
-3-
Credit
Risk Manager:
With
respect to Securitized Loans covered by a Trust Agreement, any credit risk
manager or loss mitigation advisor under such Trust Agreement.
Custodial
Account:
The
account created and maintained by the Servicer pursuant to Section
3.03.
Custodial
Agreement:
With
respect to Securitized Loans covered by a Trust Agreement, the custodial
agreement relating to custody of such Securitized Loans between a Custodian
and
the related Trustee, as acknowledged by the Servicer, dated as of the related
Effective Date.
Custodian:
A
custodian of Securitized Loans under any Custodial Agreement.
Delinquent:
For
reporting purposes, a Securitized Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Securitized Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or,
if
there is not such corresponding day (e.g., as when a 30-day month follows
a
31-day month in which a payment was due on the 31st
day of
such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding month.
Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the next
succeeding Business Day.
Depositor:
With
respect to Securitized Loans covered by a Trust Agreement , the Person to
which
the Seller transfers Mortgage Loans, or any successor in interest to such
Person, which Person in turn transfers such Mortgage Loans to a Trustee in
a
Pass-Through Transfer.
Distressed
Securitized Loan:
As of
any Effective Date, any related Securitized Loan that was Delinquent in payment
for a period of 90 days or more as of the first calendar day of the month
in
which such Effective Date occurs, without giving effect to any grace period
permitted by the related Mortgage Note or for which the Servicer has accepted
a
deed in lieu of foreclosure. No Securitized Loan shall be considered delinquent
for the purpose of this definition by virtue of the related Mortgagor having
made payment to the prior servicer.
Distribution
Date:
The
25th
day of
each month (or if such day is not a Business Day, the next succeeding Business
Day).
Due
Date:
The day
of the calendar month on which the Monthly Payment is due on a Securitized
Loan,
exclusive of any days of grace. With respect to the Securitized Loans for
which
payment from the Mortgagor is due on a day other than the first day of the
calendar month, such Securitized Loans will be treated as if the Monthly
Payment
is due on the first day of the immediately succeeding month.
-4-
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month immediately preceding the month of the Remittance Date and ending on
the
first day of the month of the Remittance Date.
Effective
Date:
The
effective date of any Pass-Through Transfer as set forth in the Transfer
Notice.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i)
direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America, including
Federal Housing Administration debentures, but excluding any of such securities
whose terms do not provide for a payment of a fixed dollar amount upon maturity
or call for redemption (“Direct Obligations”) and Xxxxxxx Mac senior debt
obligations;
(ii)
federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories, a Trustee, the Master Servicer
or any
agent of a Trustee or the Master Servicer, acting in its respective commercial
capacity) incorporated or organized under the laws of the United States of
America or any state thereof and subject to supervision and examination by
federal or state banking authorities, so long as at the time of investment
or
the contractual commitment providing for such investment the commercial paper
or
other short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution or trust company which
is
the principal subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or deposit
institution, as the case may be) have been rated by each related Rating Agency
in its highest short-term rating category or one of its two highest long-term
rating categories;
(iii)
repurchase
agreements collateralized by direct obligations of, or securities guaranteed
by,
Xxxxxx Mae or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each related Rating Agency in its highest
short-term rating category;
(iv)
securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each related Rating Agency, at the time of investment
or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each related Rating
Agency;
provided, however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the
Custodial Account to exceed 20% of the aggregate principal amount of all
Eligible Investments in the Custodial Account; provided,
further,
that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from any Rating Agency;
-5-
(v)
commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each related Rating
Agency in its highest short-term rating category;
(vi)
a
Qualified GIC (as defined in the Trust Agreement);
(vii)
certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii)
any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, rated in the highest rating
category by each related Rating Agency. Such investments in this subsection
(viii) may include money market mutual funds or common trust funds, including
any fund for which a Trustee, the Master Servicer or any affiliate thereof
serves as an investment advisor, administrator, shareholder servicing agent,
and/or custodian or subcustodian, notwithstanding that (x) the related Trustee,
the Master Servicer or any affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (y) a Trustee, the Master
Servicer or any affiliate thereof charges and collects fees and expenses
for
services rendered pursuant to this Agreement or a Trust Agreement, and (z)
services performed for such funds and pursuant to this Agreement may converge
at
any time;
provided, however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Servicer in accordance with
the
Master Servicing Guide.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
3.05.
Escrow
Payments:
With
respect to any Securitized Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any of
the events which may result in a termination for cause set forth in Section
8.01.
-6-
Xxxxxx
Mae:
The
Federal National Mortgage Association, or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHA:
The
Federal Housing Administration, an agency within HUD or any successor thereto
and including the Federal Housing Commissioner and the Secretary of HUD where
appropriate under the FHA Regulation.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer in accordance with the Master
Servicing Guide.
Fixed
Rate Securitized Loan:
Any
Securitized Loan as to which the Mortgage Interest Rate set forth in the
Mortgage Note is fixed for the term of such Securitized Loan.
Final
Recovery Determination:
With
respect to any defaulted Securitized Loan or any REO Property (other than
any
Securitized Loan or REO Property repurchased from the Trust), a determination
made by the Servicer that all Insurance Proceeds, Liquidation Proceeds and
other
payments or recoveries which the Servicer, in its reasonable good faith
judgment, expect to be finally recoverable in respect thereof have been so
recovered.
Fitch:
Fitch,
Inc., or any successor in interest.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Xxxxxx
Mae:
The
Government National Mortgage Association, or any successor thereto.
Holder
or Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar provided for in the related Trust Agreement.
HUD:
The
Department of Housing and Urban Development, or any federal agency or official
thereof which may from time to time succeed to the functions thereof with
regard
to FHA Mortgage Insurance. The term “HUD,” for purposes of this Agreement, is
also deemed to include subdivisions thereof such as the FHA and Xxxxxx
Xxx.
Insurance
Proceeds:
With
respect to each Securitized Loan, proceeds of insurance policies insuring
the
Securitized Loan or the related Mortgaged Property, including, but not limited
to, proceeds from any PMI Policy, to the extent any such proceeds are not
to be
applied to the restoration and repair of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Servicer
would follow in servicing mortgage loans for its own account, subject to
the
terms and conditions of the related Mortgage Note and Mortgage.
Issuer:
The
issuer of any Certificates pursuant to the Trust Agreement.
LIBOR:
The
three-month London InterBank Offered Rate as published in the Wall
Street Journal on
the
first Business Day of the month of any Remittance Date.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Securitized Loan,
whether through the sale or assignment of such Securitized Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related REO Property, if
the
Mortgaged Property is acquired in satisfaction of the Securitized
Loan.
-7-
Master
Servicer:
With
respect to each Trust Agreement, Xxxxx Fargo Bank Minnesota, National
Association, or any successor in interest, or if any successor Master Servicer
shall be appointed as provided in such Trust Agreement, then such successor
Master Servicer.
Master
Servicing Guide:
The
Xxxxx Fargo Bank Minnesota, N.A. Servicing Guide, original dated January,
1997,
as amended July, 2001, and all amendments or additions thereto, including
as
amended hereby. The Servicer shall have the right to all exceptions to the
Master Servicing Guide as set forth in that certain Amended and Restated
Correspondent Loan Purchase Agreement of even date herewith by and between
First
Republic Bank and TMHL.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Eligible Securitized Loan:
Any
Securitized Loan that has been designated by the Servicer as recordable in
the
name of MERS, as nominee.
MERS
Securitized Loan:
Any
Securitized Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the related Mortgage Note.
Monthly
Advance:
With
respect to each Remittance Date and each Securitized Loan, an amount equal
to
the Monthly Payment (with the interest portion of such Monthly Payment adjusted
to the Securitized Loan Remittance Rate) that was due on the Securitized
Loan,
and that was Delinquent at the close of business on the first day of the
month
in which such Remittance Date occurs, but only to the extent that such amount
is
expected, in the reasonable judgment of the Servicer, to be recoverable from
collections or other recoveries (including Liquidation Proceeds and Insurance
Proceeds) in respect of such Securitized Loan. To the extent that the Servicer
determines that any such amount is not recoverable from collections or other
recoveries in respect of such Securitized Loan, such determination shall
be
evidenced by a certificate of a Servicing Officer delivered to the Master
Servicer setting forth such determination and the procedures and considerations
of the Servicer forming the basis of such determination.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Securitized
Loan.
Moody’s:
Xxxxx’x
Investors Service, Inc. or any successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on a fee simple estate in real property securing
the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note net of any Relief Act
Reduction.
-8-
Mortgage
Note:
The
original, executed note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Sale Proceeds:
The
proceeds from the sale of REO Property, net of all expenses and advances
incurred by the Servicer in connection with such sale, including, without
limitation, legal fees and expenses, referral fees, brokerage commissions,
conveyance taxes and any other related expense.
Non-MERS
Eligible Securitized Loan:
Any
Securitized Loan other than a MERS Eligible Securitized Loan.
Non-MERS
Securitized Loan:
Any
Securitized Loan other than a MERS Securitized Loan.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the President or a vice
president (however denominated), and by the Treasurer, the Secretary, or
one of
the assistant treasurers or assistant secretaries of the Servicer, the Master
Servicer or the Seller, as applicable.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Servicer, reasonably
acceptable to the related Trustee, the Master Servicer, and the Seller, provided
that any Opinion of Counsel relating to qualification of the Securitized
Loans
in a REMIC or compliance with the REMIC Provisions must be an opinion of
counsel
acceptable to the related Trustee, the Master Servicer, and the Seller, who
(i)
is in fact independent of the Seller and the Servicer, (ii) does not have
any
material direct or indirect financial interest in either the Seller or the
Servicer or any affiliate of any such entity and (iii) is not connected with
either the Seller or the Servicer as an officer, employee, director or person
performing similar functions.
Pass-Through
Transfer:
The
sale or transfer by TMHL of some or all of the Securitized Loans to a Depositor
for transfer to a Trust to be formed as part of a publicly-issued and/or
privately placed, rated or unrated, mortgage pass-through transaction or
similar
transaction, in each case in which TMHL is retained as a Servicer thereunder,
with Xxxxx Fargo Bank Minnesota, National Association as the Master
Servicer.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Insurer:
Any
Qualified Insurer issuing a PMI Policy with respect to a Securitized
Loan.
-9-
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement and the Trust Agreement with respect to certain
Securitized Loans.
Prepayment
Charge:
With
respect to any Securitized Loan and Remittance Date, the charges or premiums,
as
specified in the Prepayment Charge Schedule, if any, due in connection with
a
full or partial prepayment of such Securitized Loan during the immediately
preceding Prepayment Period in accordance with the terms thereof (but excluding
any Servicer Prepayment Charge Payment Amount).
Prepayment
Charge Schedule:
A data
field in the schedule of Securitized Loans to be attached to the Transfer
Notice, the form of which is attached hereto as Exhibit A, which sets forth
the
amount of the Prepayment Charge and the term during which the Prepayment
Charge
is imposed with respect to a Securitized Loan.
Prepayment
Interest Shortfall Amount:
With
respect to any Securitized Loan that was subject to a Principal Prepayment
in
full or in part during any Due Period, which Principal Prepayment was applied
to
such Securitized Loan prior to such Securitized Loan’s Due Date in such Due
Period, the amount of interest that would have accrued on the amount of such
Principal Prepayment during the period commencing on the date as of which
such
Principal Prepayment was applied to such Securitized Loan and ending on the
day
immediately preceding such Due Date, inclusive.
Prepayment
Period:
With
respect to each Remittance Date and any full or partial Principal Prepayments,
the calendar month immediately preceding the month in which the related
Remittance Date occurs.
Principal
Prepayment:
Any
payment by a Mortgagor of principal (other than a Balloon Payment) or other
recovery of principal on a Securitized Loan that is recognized as having
been
received or recovered in advance of its scheduled Due Date and applied to
reduce
the principal balance of the Securitized Loan in accordance with the terms
of
the Mortgage Note.
Qualified
Depository:
With
respect to each Pass-Through Transfer, any of (i) a depository the accounts
of
which are insured by the FDIC (to the limits established by such corporation)
and the debt obligations of which are rated P-1 (or its equivalent) or better
by
each Rating Agency rating the related Certificates; or (ii) the corporate
trust
department of any bank the debt obligations of which are rated A-1 (or its
equivalent) or better by each such Rating Agency.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxxx Mac and Xxxxxx Mae.
Qualifying
Substitute Mortgage Loan:
A
mortgage loan permitted under the terms of a Trust Agreement to be substituted
for a related Securitized Loan.
Rating
Agency With
respect to Certificates issued by or in connection with a Trust, any of Fitch,
Xxxxx’x or S&P which assigns a rating to such Certificates, and their
successors. If such agencies or their successors are no longer in existence,
“Rating Agencies” shall be such nationally recognized statistical rating
agencies, or other comparable Person, designated by the Seller, written notice
of which designation shall be given to the related Trustee, the Master Servicer
and the Servicer.
-10-
Relief
Act Reduction:
With
respect to any Securitized Loan as to which there has been a reduction in
the
amount of the interest collectible thereon as a result of the application
of the
Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, any amount by which
interest collectible on such Securitized Loan for the Due Date in the related
Due Period is less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without giving effect to such
reduction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any calendar month.
REO
Disposition:
The
final sale or other disposition by the Servicer of any REO
Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
3.12.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trust through
foreclosure or by deed in lieu of foreclosure pursuant to Section 3.12
hereof.
Residual
Certificate:
Any
residual certificate or “Class R” Certificate issued under any Trust
Agreement.
S&P:
Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
Securitized
Loan:
An
individual Mortgage Loan that from time to time becomes subject to this
Agreement pursuant to a Pass-Through Transfer, each Securitized Loan subject
to
this Agreement being identified on a schedule to the Transfer Notice, the
form
of which is attached as Exhibit A hereto, which Securitized Loan includes
without limitation the Securitized Loan documents, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds, and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Securitized
Loan.
Securitized
Loan Remittance Rate:
With
respect to each Securitized Loan, the annual rate of interest remitted to
the
Master Servicer, which shall be equal to the Mortgage Interest Rate minus
the
Servicing Fee Rate.
Securitized
Loan Schedule:
The
schedule of Securitized Loans to be attached to the Transfer Notice, a form
of
which is attached hereto as Exhibit A, setting forth information with respect
to
such Securitized Loans as agreed to by the Seller, the Servicer and the Master
Servicer, including, but not limited to (i) any MERS identification number
(if
available) with respect to each MERS Securitized Loan or MERS Eligible
Securitized Loan, (ii) a data field indicating whether such Securitized Loan
is
insured under a PMI Policy and identifying the related Qualified Insurer,
(iii) a Prepayment Charge Schedule and (iv) the Servicing Fee
Rate.
-11-
Servicer:
TMHL or
its successor in interest or assigns or any successor to the Servicer under
this
Agreement as herein provided.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by the Servicer in respect of any waived Prepayment Charges
pursuant to Section 3.15 hereof.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, inspection,
restoration and protection of the Mortgaged Property, (b) any enforcement
of
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property (including costs incurred
in connection with environmental inspections or other related costs of
foreclosure of Mortgaged Property potentially contaminated by hazardous or
toxic
substance or wastes in accordance with Section 3.12 hereof) if the Mortgaged
Property is acquired in satisfaction of the Mortgage, (d) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien
upon
the Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage and (e) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property.
Servicing
Fee:
With
respect to each Due Period and any Securitized Loan, an amount equal to
one-twelfth the product of (i) the Servicing Fee Rate and (ii) the Scheduled
Balance of such Securitized Loan as of the related Determination Date. The
obligation of the Trustee to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds to the extent permitted
by
Section 3.02 of this Agreement) of such Monthly Payments collected by the
Servicer, or as otherwise provided under this Agreement, and the Servicing
Fee
is subject to reduction for compensating interest under Section 4.04
hereof.
Servicing
Fee Rate:
The
servicing fee rate, stated as either a number of basis points or as a
percentage, for each Securitized Loan, as reflected in the schedule of
Securitized Loans to be attached to the Transfer Notice, the form of which
is
attached hereto as Exhibit A.
Servicing
File:
The
items pertaining to a particular Securitized Loan including, but not limited
to,
the computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating
and/or
servicing each Securitized Loan, which are held in trust for the related
Trust
by the Servicer.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Securitized Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer upon request, as
such
list may from time to time be amended.
-12-
Sub-Servicer:
Cenlar
FSB, a federal savings bank, pursuant to the Sub-Servicing Agreement, or
its
successor in interest.
Sub-Servicing
Agreement:
That
certain Sub-Servicing Acknowledgment Agreement of even date with this Agreement,
by and between the Servicer and the Sub-Servicer.
Superseded
Sub-Servicing Agreement:
That
certain Sub-Servicing Agreement, dated as of February 22, 2000, by and between
TMI and the Sub-Servicer, as amended by that certain Amendment to Sub-Servicing
Agreement, dated as of October 31, 2000, by and among TMI, the Sub-Servicer
and
TMHL.
Xxxxxxxxx
Mortgage Securities Trusts:
One or
more trusts to be formed by a Trust Agreement as part of a Pass-Through
Transfer, pursuant to each of which a numbered series of Certificates will
be
issued.
TMHL:
As
defined in the first paragraph of this Agreement.
TMI:
Xxxxxxxxx Mortgage, Inc.
Transfer
Notice:
The
Transfer Notice referred to in Section 2.01 hereof, in the form attached
hereto
as Exhibit A.
Trust:
The
trust established by the Trust Agreement, the assets of which consist of
the
transferred Securitized Loans and any other assets provided for in the related
Trust Agreement.
Trust
Agreement:
Any
trust agreement, pooling and servicing agreement, indenture or comparable
documents by and among some or all of the Issuer, the Master Servicer, the
Depositor and a Trustee (and which may include other parties) creating a
Trust
and/or otherwise effectuating a Pass-Through Transfer.
Trustee:
Any
trustee or trust with respect to the transferred Securitized Loans in any
Pass-Through Transfer, or
any
successor in interest, or if any successor trustee or co-trustee shall be
appointed as provided in the Trust Agreement, then such successor trustee
or
such co-trustee, as the case may be.
VA:
The
Veterans Administration, an agency of the United States of America, or any
successor thereto, including the Administration of Veterans
Affairs.
Any
capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to such terms in the related Trust Agreement specified in the Transfer
Notice.
-13-
ARTICLE
II.
PASS-
THROUGH TRANSFERS; SELLER’S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section
2.01 Pass-Through
Transfers.
The
Seller and the Servicer agree that from time to time the Seller shall effect
the
sale or transfer of some or all of the Mortgage Loans to a Trust to be formed
as
part of a Pass-Through Transfer. The Servicer shall cooperate with the Seller
in
connection with any Pass-Through Transfer contemplated by the Seller pursuant
to
this Section 2.01, including without limitation providing requested information
and reports to, and otherwise cooperating with, any Credit Risk Manager.
In
connection therewith, the Servicer shall provide to the Seller and any Trustee,
Trust, Depositor, underwriter, initial purchaser or Credit Risk Manager in
connection with a Pass-Through Transfer, as the case may be: (i) any and
all
information and appropriate verification of information which may be reasonably
available to the Servicer, whether through letters of its auditors and counsel
or otherwise, as such parties shall reasonably request; and, (ii) such
additional opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Servicer as are reasonably believed
necessary by such parties or the Master Servicer or any Rating Agency, as
the
case may be, in connection with such transactions. The Seller shall provide
the
Servicer with a Transfer Notice with respect to any such Pass-Through Transfer,
including a schedule of Mortgage Loans which have been transferred, the
Effective Date of the Pass-Through Transfer and the name and address of the
related Trustee. Upon the Effective Date of such a Pass-Through Transfer,
(A)
the Servicer and the Seller agree that the provisions of this Agreement shall
go
into effect with respect to the Securitized Loans to which the Transfer Notice
relates, and (B) the Servicer agrees to recognize the Trustee and Trust with
respect to the transferred Mortgage Loans in the Pass-Through Transfer, or
the
Master Servicer acting on their behalf, as having the same rights under this
Agreement as the Seller with respect to such transferred Mortgage Loans,
including without limitation the right to terminate the Servicer under this
Agreement.
Section
2.02 Contract
for Servicing; Possession of Servicing Files.
The
Seller, by execution and delivery of this Agreement, does hereby contract
with
the Servicer, subject to the terms of this Agreement, for the servicing of
the
Securitized Loans. On or before each Closing Date, the Seller shall cause
to be
delivered to the Servicer or to the Sub-Servicer the Servicing Files with
respect to the Securitized Loans listed in the schedule attached to the
applicable Transfer Notice. Each Servicing File delivered to the Servicer
shall
be held in trust by the Servicer for the benefit of the Trust;
provided, however,
that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller. The Servicer’s possession of any portion of the
Securitized Loan documents shall be on behalf of the Trust for the sole purpose
of facilitating servicing of the related Securitized Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in
a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Servicing File shall be vested in the Trust and the ownership
of
all records and documents with respect to the related Securitized Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in
the Trust and shall be retained and maintained, in trust, by the Servicer
on
behalf of the Trust in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall
be
segregated from the other books and records of the Servicer and shall be
appropriately marked to clearly reflect the ownership of the related Securitized
Loan by the Trust. The Servicer shall release from its custody the contents
of
any Servicing File retained by it only in accordance with this
Agreement.
-14-
Section
2.03 Books
and
Records.
(a)
Subject
to Section 3.01(a) hereof, as soon as practicable after the Closing Date
or the
date on which a Qualifying Substitute Mortgage Loan is delivered pursuant
to a
Trust Agreement, as applicable (but in no event more than 90 days thereafter
except to the extent delays are caused by the applicable recording office),
the
Servicer, at the expense of the Seller, shall cause the Mortgage or Assignment
of Mortgage, as applicable, with respect to each related MERS Eligible
Securitized Loan, to be properly recorded in the name of MERS in the public
recording office in the applicable jurisdiction, or shall ascertain that
such
have previously been so recorded.
(b)
Subject
to Section 3.01(a) hereof, an Assignment of Mortgage in favor of the Trustee
on
behalf of the Trust shall be recorded as to each Non-MERS Securitized Loan
in
those jurisdictions where the Servicer obtains an Opinion of Counsel that
recordation of such an Assignment of Mortgage is required, unless instructions
to the contrary are delivered to the Servicer, in writing, by the Trustee.
Subject to the preceding sentence, as soon as practicable after the Closing
Date
(but in no event more than 90 days thereafter except to the extent delays
are
caused by the applicable recording office), the Servicer, at the expense
of the
Seller, shall cause such related Assignment of Mortgage to be properly recorded
in each public recording office where such Non-MERS Eligible Securitized
Loans
are recorded, to the extent that the Servicer obtains an Opinion of Counsel
that
recordation of such an Assignment of Mortgage is required.
(c)
Additionally,
the Servicer shall prepare and execute, at the direction of the Trustee,
any
note endorsements relating to any of the related Non-MERS Securitized
Loans.
(d)
All
rights arising out of the Securitized Loans shall be vested in the related
Trust, subject to the Servicer’s right to service and administer the Securitized
Loans hereunder in accordance with the terms of this Agreement. All funds
received on or in connection with a Securitized Loan, other than the Servicing
Fee and other compensation to which the Servicer is entitled as set forth
herein, including but not limited to that compensation as set forth in Section
5.01 below, shall be received and held by the Servicer in trust for the benefit
of the related Trust pursuant to the terms of this Agreement.
(e)
Any
out-of-pocket costs incurred by the Servicer pursuant to this Section 2.03
and
Section 3.01(a), including any recording or other fees in connection with
the
Servicer’s obtaining the necessary powers of attorney (and which are specified
herein to be an expense of the Seller), shall be reimbursed to the Servicer
by
the Seller within five (5) Business Days of receipt by the Seller of an invoice
for reimbursement. The Trust shall not reimburse the Seller for any such
reimbursement to the Servicer.
-15-
ARTICLE
III.
SERVICING
OF THE SECURITIZED LOANS
Section
3.01 Servicer
to Service.
The
Servicer, as an independent contractor, shall service and administer the
Securitized Loans from and after the Closing Date and shall have full power
and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. The Servicer may designate the sub-servicer to perform the
obligations hereunder, provided that such designation shall not relieve the
Servicer of such obligations.
The
Seller and the Servicer additionally agree as follows:
(a)
The
Servicer shall (A) record or cause to be recorded the Mortgage or the Assignment
of Mortgage, as applicable, with respect to all MERS Eligible Securitized
Loans,
in the name of MERS, or shall ascertain that such have previously been so
recorded; (B) prepare or cause to be prepared all Assignments of Mortgage
with
respect to all Non-MERS Eligible Securitized Loans; (C) prepare for recording
or
cause to be recorded, subject to Section 2.03(b) hereof, all Assignments
of
Mortgage with respect to Non-MERS Securitized Loans in the name of the related
Trust; (D) pay the recording costs pursuant to Section 2.03 hereof; and/or
(E)
track such Mortgages and Assignments of Mortgage to ensure they have been
recorded. The Servicer shall be entitled to be paid by the Seller its
out-of-pocket costs for the preparation and recordation of the Mortgages
and
Assignments of Mortgage. After the expenses of such recording costs pursuant
to
Section 2.03 hereof shall have been paid by the Servicer, the Servicer shall
submit to the Seller a reasonably detailed invoice for reimbursement of
recording costs it incurred hereunder.
(b)
If
applicable, the Servicer shall, in accordance with the relevant provisions
of
the Xxxxxxxx-Xxxxxxxx National Affordable Housing Act of 1990, as the same
may
be amended from time to time, and the regulations provided in accordance
with
the Real Estate Settlement Procedures Act, provide notice to the Mortgagor
of
each Securitized Loan of the transfer of the servicing thereto to the
Servicer.
(c)
The
Servicer shall be responsible for the preparation of and costs associated
with
notifications to Mortgagors of the assumption of servicing by the
Servicer.
Consistent
with the terms of this Agreement and except as provided in Section 3.15 hereof,
the Servicer may waive any late payment charge, assumption fee or other fee
(other than a Prepayment Charge) that may be collected in the ordinary course
of
servicing the Securitized Loans. The Servicer shall not make any future advances
to any Mortgagor under any Securitized Loan, and (unless the Mortgagor is
in
default with respect to the Securitized Loan or such default is, in the judgment
of the Servicer, reasonably foreseeable) the Servicer shall not permit any
modification of any material term of any Securitized Loan, including any
modification that would change the Mortgage Interest Rate, defer or forgive
the
payment of principal or interest, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Securitized Loan. In the event of any such modification which
permits the deferral of interest or principal payments on any Securitized
Loan,
the Servicer shall, on the Business Day immediately preceding the Remittance
Date in any month in which any such principal or interest payment has been
deferred, make a Monthly Advance in accordance with Section 4.03, in an amount
equal to the difference between (a) such month’s principal and one month’s
interest at the Securitized Loan Remittance Rate on the unpaid principal
balance
of such Securitized Loan and (b) the amount paid by the Mortgagor. The Servicer
shall be entitled to reimbursement for such advances to the same extent as
for
all other advances made pursuant to Section 4.03. The Servicer may permit
modifications to a Securitized Loan which are authorized by the express terms
of
either an allonge to the related Mortgage Note or an addendum to the related
Mortgage in existence as of the Effective Date. If TMHL wishes to make a
modification to a Securitized Loan which is not permitted under this Section
3.01, then TMHL must repurchase such Securitized Loan from the related Trust
on
the terms and conditions provided in the Trust Agreement. Without limiting
the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and
the
related Trust, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Securitized Loans and with respect to the Mortgaged Properties. Upon
the
written request of the Servicer, the Trustee shall execute and deliver to
the
Servicer, within the later of fifteen days from the Closing Date or within
fifteen days of such Servicer request, any powers of attorney (one for each
county in which any of the Mortgaged Properties are located) and other
documents, furnished to it by the Servicer and reasonably satisfactory to
the
Trustee, necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
-16-
Section
3.02 Collection
of Securitized Loan Payments.
Continuously
from the Closing Date until the date each Securitized Loan ceases to be subject
to this Agreement, the Servicer shall proceed diligently to collect all payments
due under each of the Securitized Loans when the same shall become due and
payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Securitized Loans and each related Mortgaged Property, to the end that
the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
Section
3.03 Establishment
of and Deposits to Custodial Account.
(a)
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Securitized Loans separate and apart from any of its own funds and general
assets and shall establish and maintain a Custodial Account, in the form
of a
time deposit or demand account, titled “Xxxxxxxxx Mortgage Home Loans,
Inc. in
trust
for one or more Xxxxxxxxx Mortgage Securities Trusts.” The Custodial Account
shall be established with a Qualified Depository. Any funds deposited in
the
Custodial Account may be invested in Eligible Investments subject to the
provisions of Section 3.11 hereof. Funds deposited in the Custodial Account
may
be drawn on by the Servicer in accordance with Section 3.04 hereof. The creation
of the Custodial Account shall be evidenced by a letter agreement in the
form of
Exhibit B. A copy of such certification or letter agreement shall be furnished
to each Trustee and the Master Servicer.
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(b)
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein, the following collections received by the Servicer and payments
made by
the Servicer after the Closing Date:
(i)
all
payments on account of principal received on the Securitized Loans, including
all Principal Prepayments;
(ii)
all
payments on account of interest received on the Securitized Loans adjusted
to
the applicable Securitized Loan Remittance Rate;
(iii)
all
Prepayment Charges received or any Servicer Prepayment Charge Payment Amounts
to
be paid by the Servicer to the related Trust;
(iv)
all
Liquidation Proceeds;
(v)
all
Insurance Proceeds (other than any amounts immediately applied to the
restoration or repair of the Mortgaged Property or immediately released to
the
Mortgagor);
(vi)
all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor;
(vii)
any
Prepayment Interest Shortfall Amount required to be paid by the Servicer;
(viii)
all
Monthly Advances made by the Servicer or an Advancing Person pursuant to
Section
4.03;
(ix)
any
amounts required to be deposited by the Servicer in connection with the
deductible clause in any blanket hazard insurance policy;
(x)
any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xi)
any
amounts required to be deposited pursuant to Section 3.11 in connection with
any
losses realized on Eligible Investments with respect to funds held in the
Custodial Account;
(xii)
any
amounts required to be deposited by the Servicer pursuant to Section 3.16(a)
in
connection with any unpaid claims that are a result of a breach by the Servicer
or any sub-servicer of its obligations hereunder or under a PMI
Policy;
(xiii)
any
amounts received by it under any PMI Policy; and
(xiv)
any
other
amount required hereunder to be deposited by the Servicer in the Custodial
Account.
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The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) late payment charges, penalty
interest and insufficient fund charges, (ii) assumption and modification
fees,
(iii) other Ancillary Income and (iv) the Servicing Fee need not be deposited
by
the Servicer into the Custodial Account.
Any
interest paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Servicer as additional servicing
compensation and the Servicer shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 3.04 of this Agreement.
Additionally, any other benefit derived from the Custodial Account associated
with the receipt, disbursement and accumulation of principal, interest, taxes,
hazard insurance, mortgage insurance, etc. shall accrue for the benefit of
the
Servicer.
Section
3.04 Permitted
Withdrawals From Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i)
to
make
payments to the Master Servicer in the amounts and in the manner provided
for in
Section 4.01;
(ii)
in
the
event the Servicer has elected not to retain the Servicing Fee out of any
Mortgagor payments on account of interest or other recovery of interest with
respect to a particular Securitized Loan (including late collections of interest
on such Securitized Loan, or interest portions of Insurance Proceeds,
Liquidation Proceeds or Condemnation Proceeds) prior to the deposit of such
Mortgagor payment or recovery in the Custodial Account, to pay to itself
the
related Servicing Fee from all such Mortgagor payments on account of interest
or
other such recovery for interest with respect to that Securitized
Loan;
(iii)
to
pay
itself investment earnings on funds deposited in the Custodial
Account;
(iv)
to
transfer funds to another Qualified Depository in accordance with Section
3.11
hereof;
(v)
to
invest
funds in certain Eligible Investments in accordance with Section 3.11 hereof;
(vi)
to
reimburse itself to the extent of funds held in the Custodial Account for
Monthly Advances of the Servicer’s funds made pursuant to Section 4.03. The
Servicer's right to reimburse itself pursuant to this subclause (vi) with
respect to any Securitized Loan shall be limited to amounts received on or
in
respect of the related Securitized Loan which represent late recoveries of
payments of principal or interest with respect to which a Monthly Advance
was
made, it being understood that in the case of any such reimbursement the
Servicer’s right thereto shall be prior to the rights of the related
Trust;
provided, however,
that
following the final liquidation of a Securitized Loan, the Servicer may
reimburse itself for previously unreimbursed Monthly Advances in excess of
Liquidation Proceeds or Insurance Proceeds with respect to such Securitized
Loan
from any funds in the Custodial Account relating to Securitized Loans in
the
same Trust, it being understood, in the case of any such reimbursement, that
the
Servicer’s right thereto shall be prior to the rights of the related Trust. The
Servicer may recover at any time from amounts on deposit in the Custodial
Account with respect to Securitized Loans in the same Trust the amount of
any
Monthly Advances that the Servicer deems nonrecoverable or that remain
unreimbursed to the Servicer from related Liquidation Proceeds after the
final
liquidation of the related Securitized Loan. In addition, the Servicer may,
at
any time, withdraw from the Custodial Account funds that are held for future
distribution (i.e., were not included in the principal and interest for the
preceding Distribution Date) to reimburse itself for Monthly Advances previously
made by the Servicer;
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(vii)
to
reimburse itself for unreimbursed Servicing Advances, and for any unpaid
Servicing Fees, the Servicer’s right to reimburse itself pursuant to this
subclause (vii) with respect to any Securitized Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and other amounts received in respect of the related REO Property,
and
such other amounts as may be collected by the Servicer from the Mortgagor
or
otherwise relating to the Securitized Loan, it being understood that, in
the
case of any such reimbursement, the Servicer’s right thereto shall be prior to
the rights of the related Trust;
(viii)
to
reimburse the Servicer for expenses incurred by, and reimbursable to, the
Servicer pursuant to Section 6.03, but only to extent such amounts are
determined to be reimbursable by the related Trust pursuant to Section 6.03;
(ix)
to
reimburse itself for expenses incurred or reimbursable to the Servicer pursuant
to Section 3.12 from funds with respect to Securitized Loans in the same
Trust
to the extent not previously reimbursed under clause (vii) of this Section
3.04;
(x)
to
withdraw funds with respect to Securitized Loans in the same Trust necessary
for
the operation, management and maintenance of any REO related property to
the
extent not previously reimbursed under clause (vii) of this Section 3.04;
(xi)
to
withdraw any funds deposited to the Custodial Account in error;
and,
(xii)
to
clear
and terminate the Custodial Account upon the termination of this Agreement;
Notwithstanding
the foregoing clauses (vi) and (vii), no Monthly Advances or Servicing Advances
shall be required to be made by the Servicer if such Monthly Advance or
Servicing Advance would, if made, be, in the Servicer’s reasonable judgment,
nonrecoverable. The determination by the Servicer that it has made a
nonrecoverable Monthly Advance or Servicing Advance, or that any proposed
Monthly Advance or Servicing Advance would be a nonrecoverable advance, shall
be
evidenced by an Officer’s Certificate of the Servicer delivered to the Master
Servicer.
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Section
3.05 Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Securitized Loan constituting Escrow Payments separate and apart from any
of its
own funds and general assets and shall establish and maintain an Escrow Account,
in the form of a time deposit or demand account, titled “Xxxxxxxxx Mortgage Home
Loans, Inc. in trust for one or more Xxxxxxxxx Mortgage Securities Trusts.” The
Escrow Account shall be established with a Qualified Depository in a manner
that
shall provide maximum available insurance thereunder. Funds deposited in
the
Escrow Account may be drawn on by the Servicer in accordance with Section
3.06.
The creation of the Escrow Account shall be evidenced by a letter agreement
in
the form of Exhibit C. A copy of such certification or letter agreement shall
be
furnished to each Trustee and the Master Servicer.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i)
all
Escrow Payments collected on account of the Securitized Loans, for the purpose
of effecting timely payment of any such items as required under the terms
of
this Agreement; and
(ii)
all
amounts representing Insurance Proceeds or Condemnation Proceeds that are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.06.
The
Servicer shall retain any interest paid on funds deposited in the Escrow
Account
by the depository institution, other than interest on escrowed funds required
by
law to be paid to the related Mortgagor. Additionally, any other benefit
derived
from the Escrow Account associated with the receipt, disbursement and
accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer. To the extent required by law,
the
Servicer shall pay interest on escrowed funds to the related Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section
3.06 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
(i)
to
effect
payments of ground rents, taxes, assessments, water rates, sewer rents, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii)
to
refund
to any related Mortgagor any funds found to be in excess of the amounts required
under the terms of the related Securitized Loan;
(iii)
as
permitted by applicable state law, for transfer to the Custodial Account
and
application to reduce the principal balance of the related Securitized Loan
in
accordance with the terms of the related Mortgage and Mortgage
Note;
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(iv)
for
application to restore or repair the related Mortgaged Property in accordance
with the Master Servicing Guide;
(v)
to
pay to
the Servicer, or the related Mortgagor to the extent required by law, any
interest paid on the funds with respect to a Securitized Loan deposited in
the
Escrow Account; and
(vi)
to
reimburse itself for any Servicing Advances made with respect to Escrow Payments
for a Securitized Loan or the related Mortgaged Properties, but only from
amounts received on the related Securitized Loan which represent late
collections of Escrow Payments thereunder;
(vii)
to
withdraw any funds deposited into the Escrow Account in error; and
(viii)
to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Servicer will be responsible for the administration of the Escrow Accounts
and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this Section 3.06, reimbursable from the Escrow Accounts
or Custodial Account to the extent not collected from a Mortgagor, anything
to
the contrary notwithstanding, when and as necessary to avoid the lapse of
insurance coverage on the related Mortgaged Property, or which the Servicer
knows, or in the exercise of the required standard of care of the Servicer
hereunder should know, is necessary to avoid the loss of such Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Servicer receives notice of a tax lien
with
respect to such Mortgaged Property being imposed, the Servicer will, within
ten
(10) Business Days of such notice, advance or cause to be advanced funds
necessary to discharge such lien on such Mortgaged Property.
Section
3.07 Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Master Servicer prior to releasing
any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to the restoration or repair of the related Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. At a minimum, with respect
to claims of $10,000 or more, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i)
the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii)
the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens.
(iii)
the
Servicer shall verify that the Securitized Loan is not 60 or more days
delinquent; and
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(iv)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
With
respect to claims of less than $10,000, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(v)
the
related Mortgagor shall provide an affidavit verifying the completion of
repairs
and issuance of any required approvals with respect thereto;
(vi)
the
Servicer shall verify the total amount of the claim with the applicable
insurance company; and
(vii)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Trustee is named as an additional loss payee, the Servicer is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
related Trust.
Section
3.08 Fidelity
Bond and Errors and Omissions Insurance.
The
Servicer shall keep in force and shall cause each sub-servicer to keep in
force
during the term of this Agreement a Fidelity Bond and Errors and Omissions
Insurance the minimum coverage of which shall be at least equal to the coverage
required by the Master Servicer in the Master Servicing Guide (unless a waiver
of such requirement has been obtained by the Servicer from the Master Servicer).
Such Fidelity Bond and Errors and Omissions Insurance shall be maintained
with
recognized insurers, shall be in such form and amount as would permit the
Servicer to be qualified with the Master Servicer as a servicer, and shall
by
its terms not be cancelable without thirty days’ prior written notice to the
Trustee and the Master Servicer. The Servicer and each sub-servicer shall
be
deemed to have complied with this provision if an affiliate of the Servicer
has
such errors and omissions and fidelity bond coverage and, by the terms of
such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
the Servicer. The Servicer shall furnish and shall cause each sub-servicer
to
furnish to the Trustee and the Master Servicer a copy of each such bond and
insurance policy upon their request.
Section
3.09 Notification
of Adjustments.
With
respect to each Adjustable Rate Securitized Loan, the Servicer shall adjust
the
Mortgage Interest Rate on the related interest rate adjustment date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of
the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Servicer or the receipt
of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Monthly Payment in accordance with the terms of
the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
thereby.
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Section
3.10 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Securitized Loan, 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 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 the 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 or applicable
regulations. The Servicer assumes full responsibility for the payment of
all
such bills and shall effect payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments. The Servicer shall employ Accepted Servicing Practices to ensure
that
the related Mortgaged Property is not subjected to a tax lien as a result
of
nonpayment and that such Mortgaged Property is not left uninsured.
Section
3.11 Protection
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. The Servicer shall give written notice
to the Trustee and the Master Servicer of the location of the Custodial Account
maintained by it with respect to the Securitized Loans when established and
prior to any change thereof.
The
Servicer shall bear any expenses, losses or damages sustained by the Trustee
or
the Master Servicer if the Custodial Account and/or the Escrow Account are
not
demand deposit accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Servicer be invested in Eligible Investments; provided that in the event
that amounts on deposit in the Custodial Account or the Escrow Account exceed
the amount fully insured by the FDIC (the “Insured Amount”), the Servicer shall
be obligated to invest the excess amount over the Insured Amount in Eligible
Investments on the same Business Day as such excess amount becomes present
in
the Custodial Account or the Escrow Account. Any such Eligible Investment
shall
mature no later than the Business Day immediately preceding the related
Remittance Date or other date on which funds are needed to be disbursed.
Any
such Eligible Investment shall be made in the name of the Servicer in trust
for
the benefit of one or more Xxxxxxxxx Mortgage Securities Trusts, as their
interests may appear. All income on or gain realized from any such Eligible
Investment shall be for the benefit of the Servicer and may be withdrawn
at any
time by the Servicer. Any losses incurred in respect of any such investment
shall be deposited in the Custodial Account or the Escrow Account by the
Servicer out of its own funds immediately as realized.
-24-
Section
3.12 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the related Trust, or in the event the related Trust is not authorized
or permitted to hold title to real property in the state where the REO Property
is located, or would be adversely affected under the “doing business” or tax
laws of such state by so holding title, the deed or certificate of sale shall
be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer from any attorney duly licensed
to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the related Trust shall acknowledge
in
writing that such title is being held as nominee for the related
Trust.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
related Trust solely for the purpose of its prompt disposition and sale.
The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate such 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 for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the related Trust.
Notwithstanding
anything to the contrary contained in this Section 3.12, in connection with
a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the
Servicer has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Master
Servicer otherwise requests, an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector shall be arranged
by
the Servicer. Upon completion of the inspection, the Servicer shall provide
the
Master Servicer with a written report of such environmental inspection. In
the
event that the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not proceed with foreclosure or acceptance of a deed in lieu
of
foreclosure. In the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is contaminated
by
hazardous or toxic substances or wastes, the Servicer shall not, without
the
prior written approval of the Master Servicer, proceed with foreclosure or
acceptance of a deed in lieu of foreclosure. The Servicer shall be reimbursed
for all Servicing Advances made pursuant to this paragraph with respect to
the
related Mortgaged Property from the amounts on deposit in the Custodial Account
with respect to Securitized Loans in the same Trust.
In
the
event that a Trust which has made one or more REMIC elections acquires any
REO
Property in connection with a default or imminent default on a Securitized
Loan,
the Servicer shall dispose of such REO Property not later than the end of
the
third taxable year after the year of its acquisition by the related Trust
unless
the Servicer has applied for and received a grant of extension from the Internal
Revenue Service (and provides a copy of the same to the Master Servicer)
to the
effect that, under the REMIC Provisions and any relevant proposed legislation
and under applicable state law, a REMIC elected by such Trust may hold REO
Property for a longer period without adversely affecting the REMIC status
of
such REMIC or causing the imposition of a federal or state tax upon such
REMIC.
If the Servicer has received such an extension (and provided a copy of the
same
to the Master Servicer), then the Servicer shall continue to attempt to sell
the
REO Property for its fair market value for such period longer than three
years
as such extension permits (the “Extended Period”). If the Servicer has not
received such an extension, and the Servicer is unable to sell the REO Property
within the period ending 3 months before the end of such third taxable year
after its acquisition by the related Trust or if the Servicer has received
such
an extension, and the Servicer is unable to sell the REO Property within
the
period ending three months before the close of the Extended Period, the Servicer
shall, before the end of the three-year period or the Extended Period, as
applicable, (i) purchase such REO Property at a price equal to the REO
Property’s fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably designed to produce
a fair price prior to the expiration of the three-year period or the Extended
Period, as the case may be. The related Trustee shall sign any document or
take
any other action reasonably requested by the Servicer which would enable
the
Servicer, on behalf of the related Trust, to request such grant of
extension.
-25-
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by a Trust
shall be rented (or allowed to continue to be rented) or otherwise used by
or on
behalf of such Trust in such a manner or pursuant to any terms that would:
(i)
cause such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code; or (ii) subject any REMIC elected
by
such Trust to the imposition of any federal income taxes on the income earned
from such REO Property, including any taxes imposed by reason of Sections
860F
or 860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless such Trust with respect to the imposition of any such
taxes.
The
Servicer shall also maintain on each REO Property hazard insurance with extended
coverage in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and
(ii)
the outstanding Principal Balance of the Securitized Loan at the time it
becomes
REO Property, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in the amount required
above.
The
disposition of REO Property shall be carried out by the Servicer at such
price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the related Trust. The proceeds of sale of the REO Property
shall
be promptly deposited in the Custodial Account. After the expenses of such
disposition shall have been paid, the Servicer shall reimburse itself pursuant
to Section 3.04 hereof for any Servicing Advances it incurred with respect
to
such REO Property.
The
Servicer shall withdraw from the amounts on deposit in the Custodial Account
with respect to Securitized Loans in the same Trust funds necessary for the
proper operation, management and maintenance of the REO Property, including
the
cost of maintaining any hazard insurance pursuant to the Master Servicing
Guide.
The Servicer shall make monthly distributions on each Remittance Date to
the
Trustee of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
3.12 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
-26-
Section
3.13 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish by electronic transmission to the Master Servicer on or before the
Remittance Date each month a statement with respect to any REO Property covering
the operation of such REO Property for the previous month and the Servicer’s
efforts in connection with the sale of such REO Property and any rental of
such
REO Property incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the Master Servicer
shall reasonably request.
Section
3.14 MERS.
(a)
The
Servicer shall take such actions as are necessary to cause the related Trust
to
be clearly identified as the owner of each MERS Securitized Loan on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
(b)
The
Servicer shall maintain in good standing its membership in MERS. In addition,
the Servicer shall comply with all rules, policies and procedures of MERS,
including the Rules of Membership, as amended, and the MERS Procedures Manual,
as amended.
(c)
With
respect to all MERS Securitized Loans serviced hereunder, the Servicer shall
promptly notify MERS as to any transfer of beneficial ownership or release
of
any security interest in such Securitized Loans.
(d)
With
respect to all MERS Securitized Loans serviced hereunder, the Servicer shall
notify MERS as to any transfer of servicing pursuant to Section 9.01 within
10
Business Days of such transfer of servicing. The Servicer shall cooperate
with
each Trustee and any successor servicer to the extent necessary to ensure
that
such transfer of servicing is appropriately reflected on the MERS
system.
Section
3.15 Waiver
of Prepayment Penalties.
Except
as
provided below, the Servicer or any designee of the Servicer shall not waive
any
Prepayment Charge with respect to any Securitized Loan. If the Servicer or
its
designee fails to collect a Prepayment Charge at the time of the related
prepayment of any Securitized Loan subject to such Prepayment Charge, the
Servicer shall pay to the Trust at such time (by deposit to the Custodial
Account) an amount equal to the amount of the Prepayment Charge not collected;
provided,
however,
the
Servicer shall not have any obligation to pay the amount of any uncollected
Prepayment Charge under this Section 3.15 if the failure to collect such
amount
is the result of inaccurate or incomplete information in the Prepayment Charge
Schedule provided by the Seller and which is included as part of the schedule
of
Securitized Loans attached to the related Transfer Notice. The Seller warrants
that the schedule of Prepayment Charges listed in each Transfer Notice will
be
complete, true and accurate and may be relied on by the Servicer in its
calculation of Prepayment Charges. If the Prepayment Charge data set forth
in a
Transfer Notice is incorrect, then the Servicer shall have no liability for
any
loss resulting from calculation of Prepayment Charges using the data provided
by
the Seller. Notwithstanding the above, the Servicer or its designee may waive
a
Prepayment Charge without paying to the related Trust the amount of such
Prepayment Charge only if the related prepayment is not the result of a
refinancing by the Servicer or its designee and such waiver (i) relates to
a
defaulted Securitized Loan or a reasonably foreseeable default, such waiver
is
standard and customary in servicing similar mortgage loans to the Securitized
Loans, and such waiver, in the reasonable judgment of the Servicer, would
maximize recovery of total proceeds from the Securitized Loan, taking into
account the amount of such Prepayment Charge and the related Securitized
Loan,
or (ii) relates to a prepayment charge the collection of which, in the
reasonable judgment of the Servicer, would be a violation of applicable
law.
-27-
Section
3.16 Servicing
and Administration of PMI Policies.
(a)
The
Servicer shall take all such actions on behalf of the Trustee as are necessary
to service, maintain and administer PMI Policies and to perform and enforce
the
rights under such Policies for the benefit of the related Trust. Except as
expressly set forth herein, the Servicer shall have full authority on behalf
of
the related Trust to do anything it reasonably deems appropriate or desirable
in
connection with the servicing, maintenance and administration of the PMI
Policies. The Servicer shall not take, or permit any sub-servicer to modify
or
assume a Securitized Loan covered by a PMI Policy or take any other action
with
respect to such Securitized Loan which would result in non-coverage under
any
PMI Policy of any loss which, but for the actions of the Servicer or the
Sub-Servicer, would have been covered thereunder. If a PMI Insurer fails
to pay
a claim under a PMI Policy as a result of breach by the Servicer or a
sub-servicer of its obligations hereunder or under a PMI Policy, the Servicer
shall be required to deposit in the Custodial Account on or prior to the
next
succeeding Remittance Date an amount equal to such unpaid claim from its
own
funds without any right to reimbursement from the related Trust. To the extent
coverage is available, the Servicer shall keep or cause to be kept in full
force
and effect the Insurance Policies for as long as any Certificates issued
by the
related Trust are outstanding. The Servicer shall cooperate with each PMI
Insurer and shall use its best efforts to furnish all reasonable aid, evidence
and information in the possession of the Servicer to which the Servicer has
access with respect to any Securitized Loan;
provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the Servicer
shall not be required to submit any reports to a PMI Insurer until a reporting
date that is at least 15 days after the Servicer has received sufficient
loan
level information from the Seller to appropriately code its servicing system
in
accordance with such PMI Insurer’s requirements.
(b)
The
Servicer shall deposit into the Custodial Account pursuant to Section 3.03(xiii)
hereof all Insurance Proceeds received from the PMI Insurer under the terms
of a
PMI Policy.
(c)
Notwithstanding
the provisions of (a) and (b) above, the Servicer shall not take any action
in
regard to any PMI Policy inconsistent with the interests of the related Trust
or
the related Certificateholders or with the rights and interests of the related
Trust or the related Certificateholders under this Agreement.
(d)
The
related Trustee shall furnish the Servicer with any powers of attorney and
other
documents (within fifteen (15) days upon request from the Servicer) in form
as
provided to it necessary or appropriate to enable the Servicer to service
and
administer any PMI Policy;
provided, however,
that the
related Trustee shall not be liable for the actions of the Servicer under
such
powers of attorney.
-28-
Section
3.17 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Securitized Loan hazard insurance
such that all buildings upon the related Mortgaged Property 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 such Mortgaged
Property is located in an amount which is at least equal to the lesser of
(i) the current principal balance of such Securitized Loan and
(ii) the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis,
in
each case in an amount not less than the amount as is necessary to avoid
the
application of any co-insurance clause contained in the related hazard insurance
policy.
Any
payments by the Servicer for hazard insurance, other than as set forth in
the
last paragraph of this Section 3.17, shall be deemed Servicing Advances,
reimbursable in accordance with Section 3.04(vii) or (x), to the extent not
collected from the related Mortgagor. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements
of each
insurer under any such hazard policies. Any amounts to be collected by the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property or amounts to be released to the Mortgagor
subject to the terms and conditions of the related Mortgage and Mortgage
Note)
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 3.04, if received in respect of a Securitized Loan. Any cost incurred
by
the Servicer in maintaining any such insurance shall not, for the purpose
of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Securitized Loan, notwithstanding that the
terms of such Securitized Loan so permit. It is understood and agreed that
no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any
time
be in force and as shall require such additional insurance. If a Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Servicer will cause
to
be maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid principal
balance of the related Securitized Loan and (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national
flood
insurance program (assuming that the area in which such Mortgaged Property
is
located is participating in such program).
In
the
event that the Servicer or the Sub-Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of B:III or better
in
Best’s Key Rating Guide (or such other rating that is comparable to such rating)
insuring against hazard losses on all of the Securitized Loans in a Trust,
it
shall conclusively be deemed to have satisfied its obligations as set forth
in
the first two sentences of this Section 3.17 with respect to the Securitized
Loans in such Trust, it being understood and agreed that such 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 or REO Property
a policy complying with the first two sentences of this Section 3.17, and
there
shall have been one or more losses which would have been covered by such
policy,
deposit to the Custodial Account from its own funds without right of
reimbursement the amount not otherwise payable under the blanket policy because
of such deductible clause for the benefit of the related Trust. In connection
with its activities as administrator and servicer of the Securitized Loans,
the
Servicer agrees to prepare and present, on behalf of itself, the Trust and
the
Certificateholders, claims under any such blanket policy in a timely fashion
in
accordance with the terms of such policy.
-29-
Section
3.18 Realization
Upon Defaulted Securitized Loans.
(a)
The
Servicer shall, consistent with Accepted Servicing Practices, foreclose upon
or
otherwise comparably convert the ownership of properties securing such of
the
Securitized Loans (including selling any such Securitized Loans other than
converting the ownership of the related properties) as come into and continue
in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments. The Servicer shall be responsible for all costs and
expenses incurred by it in any such proceedings;
provided, however,
that
such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.04. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property shall have suffered
damage from an uninsured cause, the Servicer shall not be required to expend
its
own funds toward the restoration of such Mortgaged Property unless it has
determined that such restoration will increase the proceeds of liquidation
of
the related Securitized Loan after reimbursement to itself for such expenses.
In
instituting foreclosures or other similar proceedings, the Servicer shall
institute such proceedings in its own name on behalf of the related Trust,
unless otherwise required by applicable law or otherwise
appropriate.
(b)
If
the
Servicer determines that it is in the best economic interest of a Trust and
the
Certificateholders to sell a Distressed Securitized Loan rather than
foreclosing, the Servicer may effect such a sale. The net proceeds of such
sale
shall be Liquidation Proceeds.
(c)
Proceeds
received in connection with any Final Recovery Determination, as well as
any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or Condemnation Proceeds, in respect of any Securitized Loan, will
be
applied in the following order of priority: first,
to
unpaid Servicing Fees; second,
to
reimburse the Servicer or any sub-servicer for any related unreimbursed
Servicing Advances and Monthly Advances pursuant to Section 3.04; third,
to
accrued and unpaid interest on the Securitized Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date
on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and fourth, as a recovery of principal of the
Securitized Loan. The portion of the recovery so allocated to any unpaid
Servicing Fee shall be reimbursed to the Servicer or any sub-servicer pursuant
to Section 3.04.
Section
3.19 Enforcement
of Due-On-Sale Clauses; Assumption Agreement.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or contract of sale, and whether or not the Mortgagor remains
or is
to remain liable under the Mortgage Note and/or the Mortgage), exercise its
rights to accelerate the maturity of such Securitized Loan under the
"due-on-sale" clause, if any, applicable thereto;
provided, however, that
the
Servicer shall not be required to take such action if in its sole business
judgment the Servicer believes it is not in the best interests of the related
Trust and shall not exercise any such rights if prohibited by law from doing
so.
If the Servicer reasonably believes it is unable under applicable law to
enforce
such "due-on-sale" clause, or if any of the other conditions set forth in
the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. The Servicer
is also
authorized to enter into a substitution of liability agreement with such
person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note, provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and has a credit risk
rating
at least equal to that of the original Mortgagor. In connection with any
assumption or substitution, the Servicer shall apply such underwriting standards
and follow such practices and procedures as shall be normal and usual in
its
general mortgage servicing activities and as it applies to other mortgage
loans
owned solely by it. The Servicer shall not take or enter into any assumption
and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption, modification or substitution of
liability agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of
the
Mortgage Note (including but not limited to the related Mortgage Interest
Rate
and the amount of the Monthly Payment) may be amended or modified, except
as
otherwise required pursuant to the terms thereof. The Servicer shall notify
the
related Trustee that any such substitution, modification or assumption agreement
has been completed by the Servicer, and the Servicer shall deliver to the
Custodian the executed original of such substitution, modification or assumption
agreement, which document shall be added 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 documents and instruments constituting a part thereof, and the
Servicer shall also deliver to the Trustee a copy of the executed substitution,
modification or assumption agreement.
-30-
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 Securitized Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason whatever.
For purposes of this Section 3.19, the term "assumption" is deemed to also
include a sale (of the Mortgaged Property) subject to the Mortgage that is
not
accompanied by an assumption or substitution of liability agreement.
Section
3.20 Credit
Risk Manager.
The
Servicer acknowledges and agrees that, under any Trust Agreement, a Credit
Risk
Manager may be required to provide certain credit risk management services
as
provided therein. If so, the Servicer hereby agrees to cooperate with the
Credit
Risk Manager in connection with all reasonable requests made by the Credit
Risk
Manager, including, without limitation, promptly providing copies of any
servicing reports and remittance advices required under this Agreement to
the
Credit Risk Manager.
-31-
ARTICLE
IV.
PAYMENTS
TO MASTER
SERVICER
Section
4.01 Remittances.
On
each
Remittance Date, no later than 3:00 p.m. New York City time, the Servicer
shall
remit on a scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the Custodial Account
as of the close of business on the last day of the related Due Period (net
of
charges against or withdrawals from the Custodial Account pursuant to Section
3.04), plus (b) all Monthly Advances, if any, which the Servicer or other
Advancing Person is obligated to make pursuant to Section 4.03, minus (c)
any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after
the
applicable Due Period, which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 3.03 (iii) and (vii), and minus (d)
any
amounts attributable to Monthly Payments collected but due on a Due Date
or Due
Dates subsequent to the first day of the month in which such Remittance Date
occurs, which amounts shall be remitted on the Remittance Date next succeeding
the Due Date related to such Monthly Payment.
With
respect to any remittance received by the Master Servicer after the fifth
Business Day following the Business Day on which such payment was due, the
Servicer shall pay to the Master Servicer interest on any such late payment
at
an annual rate equal to LIBOR, adjusted as of the date of each change, plus
four
(4) percentage points, but in no event greater than the maximum amount permitted
by applicable law. Such interest shall be deposited in the Custodial Account
by
the Servicer on the date such late payment is made and shall cover the period
commencing with the day following the Remittance Date and ending with the
Business Day on which such payment is made, both inclusive. Such interest
shall
be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Servicer of any such interest shall not
be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Master Servicer or any applicable Trustee.
All
remittances required to be made to the Master Servicer shall be made on a
scheduled/scheduled basis to the following wire account or to such other
account
as may be specified by the Master Servicer from time to time:
Xxxxx
Fargo Bank Minnesota, National Association
Minneapolis,
Minnesota
ABA#
000-000-000
Account
Name: Corporate Trust Account Number 0000000000
For
further credit to: Collection Account No. 00000000
Section
4.02 Statements
to Master Servicer.
-32-
Not
later
than the 10th
calendar
day of each month (or if such calendar day is not a Business Day, the
immediately succeeding Business Day), the Servicer shall furnish to the Master
Servicer with respect to each related Trust, or as the Servicer and the Master
Servicer may otherwise agree (a) a monthly remittance advice in the format
set
forth at Exhibit D hereto for the period ending on the first day of such
calendar month (i.e., the Due Period) and (b) all such information required
pursuant to clause (a) above in an electronic file or other similar media
reasonably acceptable to the Master Servicer.
Such
monthly remittance advice shall also be accompanied with a supplemental report
provided to the Master Servicer which includes on an aggregate basis for
the
previous Due Period (i) the amount of claims filed, (ii) the amount of any
claim
payments made, (iii) the amount of claims denied or curtailed and (iv) policies
cancelled with respect to those Securitized Loans covered by any PMI Policy
or
any other provider of primary mortgage insurance purchased by the Trust.
The
Master Servicer will convert such data into a format acceptable to each related
Trustee and provide monthly reports to such Trustee pursuant to the related
Trust Agreement;
provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the Servicer
shall not be required to submit any supplemental reports including the foregoing
data with respect to a PMI Policy until a reporting date that is at least
15
days after the Servicer has received sufficient loan level information from
the
Seller to appropriately code its servicing system in accordance with
requirements.
In
addition, not more than 60 days after the end of each calendar year, commencing
December 31, 2002, the Servicer shall provide (as such information becomes
reasonably available to the Servicer) to the Master Servicer such information
concerning the Securitized Loans and annual remittances to the Master Servicer
with respect to the Securitized Loans in each Trust as is necessary for each
Certificateholder to prepare its federal income tax return. Such obligation
of
the Servicer shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Servicer to
the
Master Servicer and pursuant to any requirements of the Code as from time
to
time are in force.
Beginning
with calendar year 2003, the Servicer shall provide the Master Servicer and
each
Trustee with such information concerning the related Securitized Loans as
is
necessary for such Trustee to prepare the related Trust’s federal income tax
return and for any investor in the related Certificates to prepare any required
tax return.
Section
4.03 Monthly
Advances by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution, or both, an amount equal to the aggregate of all Monthly
Advances relating to Monthly Payments which were due on the Securitized Loans
during the applicable Due Period and which were delinquent at the close of
business on the immediately preceding Determination Date. Any amounts held
for
future distribution and so used shall be replaced by the Servicer by deposit
in
the Custodial Account on or before any future Remittance Date if funds in
the
Custodial Account on such Remittance Date shall be less than remittances
to the
Master Servicer required to be made on such Remittance Date. The Servicer
shall
keep appropriate records of such amounts and will provide such records to
the
Master Servicer upon request. No provision in this Agreement shall be construed
as limiting the Servicer’s right to (i) pass through late collections on the
related Securitized Loans in lieu of making Monthly Advances (ii) reimburse
itself for such Monthly Advances from late collections on the related
Securitized Loans or (iii) utilize an Advancing Person (as defined
below).
-33-
The
Servicer shall make Monthly Advances through the Distribution Date immediately
preceding the distribution of all Liquidation Proceeds and other payments
or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect
to the related Securitized Loans.
The
Servicer may enter into a facility with any person including the Sub-Servicer
which provides that such person (an “Advancing Person”) may fund Monthly
Advances required under this Section 4.03 and/or Servicing Advances, although
no
such facility shall reduce or otherwise affect the Servicer’s obligation to fund
such Monthly Advances and/or Servicing Advances. Any Monthly Advances and/or
Servicing Advances made by an Advancing Person shall be reimbursed to the
Advancing Person in the same manner as reimbursements would be made to the
Servicer under Section 3.04 if such Monthly Advances or Servicing Advance
were
funded by the Servicer.
Section
4.04 Compensating
Interest.
The
Servicer shall be required to deposit in the Custodial Account, and retain
therein with respect to each Principal Prepayment, the Prepayment Interest
Shortfall Amount, if any, for the related Due Period. Such deposit shall
be made
from the Servicer’s own funds, without reimbursement therefor, up to an amount
equal to the lesser of with respect to the Securitized Loans in each Trust
(i)
the Prepayment Interest Shortfall Amount or (ii) the Servicing Fee, in each
case, with respect to the Securitized Loans in such Trust. The Servicer shall
not be obligated to pay any Prepayment Interest Shortfall Amount with respect
to
any Relief Act Reduction or bankruptcy.
Section
4.05 Credit
Reporting.
For
each
Securitized Loan, in accordance with its current servicing practices, the
Servicer will accurately and fully report its underlying borrower credit
files
to each of the following credit repositories or their successors: Equifax
Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis in a timely manner.
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
Section
5.01 Servicing
Compensation.
As
consideration for servicing the Securitized Loans subject to this Agreement,
the
Servicer shall retain (a) the Servicing Fee for each Securitized Loan remaining
subject to this Agreement during any month and (b) Ancillary Income. The
Servicing Fee shall be payable monthly.
-34-
The
aggregate of the Servicing Fees for any month with respect to the Securitized
Loans in a Trust shall be reduced by any Prepayment Interest Shortfall Amount
with respect to the Securitized Loans in such Trust with respect to such
month.
The Servicer shall be entitled to recover any unpaid Servicing Fee out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds to the
extent
permitted in Section 3.04 and out of amounts derived from the operation and
sale
of an REO Property to the extent permitted by Section 3.12.
Additional
servicing compensation in the form of Ancillary Income shall be retained
by the
Servicer only to the extent such fees or charges are received by the Servicer.
The Servicer shall also be entitled pursuant to Section 3.04 and Section
3.06 to
withdraw from the Custodial Account and Escrow Account, respectively, as
additional servicing compensation, interest or other income earned on deposits
therein, subject to Section 3.11.
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder, including any fees due to sub-servicers,
and
shall not be entitled to reimbursement thereof except as specifically provided
for herein.
Section
5.02 Annual
Audit Report.
Not
more
than ninety days after the end of the Servicer’s fiscal year commencing with the
fiscal year ending December 31, 2002, the Servicer shall, at its own expense,
cause a firm of independent public accountants (who may also render other
services to Servicer), which is a member of the American Institute of Certified
Public Accountants, to furnish to the Seller and the Master Servicer (i)
year-end audited (if available) financial statements of the Servicer and
(ii) a
statement to the effect that such firm has examined certain documents and
records for the preceding fiscal year (or during the period from the date
of
commencement of such Servicer’s duties hereunder until the end of such preceding
fiscal year in the case of the first such certificate) and that, on the basis
of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
Servicer’s overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
Section
5.03 Annual
Officer’s Certificate.
Not
more
than ninety days after the end of the Servicer’s fiscal year commencing with the
fiscal year ending December 31, 2002, the Servicer, at its own expense, will
deliver to the Seller and the Master Servicer a Servicing Officer’s certificate
stating, as to each signer thereof, that (i) a review of the activities of
the
Servicer during such preceding fiscal year and of performance under this
Agreement has been made under such officers’ supervision, and (ii) to the best
of such officers’ knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement for such year, or, if there has
been a
default in the fulfillment of all such obligations, specifying each such
default
known to such officers and the nature and status thereof including the steps
being taken by the Servicer to remedy such default.
-35-
ARTICLE
VI.
REPRESENTATIONS,
WARRANTIES
AND
AGREEMENTS
Section
6.01 Representations,
Warranties and Agreements of the Servicer.
The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the
Seller,
the Depositor, the Trustee and the Master Servicer as of the Closing
Date:
(a)
Due
Organization and Authority.
The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and
has
all licenses necessary to carry on its business as now being conducted and
either it or its designated sub-servicer is licensed, qualified and in good
standing in each state where a Mortgaged Property is located if the laws
of such
state require licensing or qualification in order to conduct a servicing
business of the type provided for herein, and in any event the Servicer or
its
designated sub-servicer is in compliance with the laws of any such state
to the
extent necessary to ensure the enforceability of the terms of this Agreement;
the Servicer has the full power and authority to execute and deliver this
Agreement and, together with such sub-servicer, to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
the
Servicer and the consummation of the transactions contemplated hereby have
been
duly and validly authorized; this Agreement evidences the valid, binding
and
enforceable obligation of the Servicer and all requisite action has been
taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(b)
Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement, taking into
account the role of its sub-servicer, is in the ordinary course of business
of
the Servicer;
(c)
No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the servicing
responsibilities by the Servicer or the transactions contemplated hereby,
nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s organizational documents or any legal
restriction or any agreement or instrument to which the Servicer is now a
party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or, taking into account the role of its designated
sub-servicer, result in the violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject, or impair
the ability of the Servicer to service the Securitized Loans, or impair the
value of the Securitized Loans;
(d)
Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it, together with the Sub-Servicer, cannot perform each and every covenant
contained in this Agreement;
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(e)
No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or, to the best of
our
knowledge, threatened against the Servicer which, either in any one instance
or
in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or
in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on
the
part of the Servicer, or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely
to
impair materially the ability of the Servicer together with the Sub-Servicer
to
perform under the terms of this Agreement;
(f)
No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
together with the Sub-Servicer of or compliance by the Servicer together
with
the Sub-Servicer with this Agreement;
(g)
Ability
to Service.
The
Servicer is an approved seller/servicer of conventional residential Securitized
Loans for Xxxxxx Xxx and Xxxxxxx Mac, and, together with those of its designated
sub-servicer, shall ensure that there are the facilities, procedures, and
experienced personnel necessary for the sound servicing of the Securitized
Loans. The Servicer is in good standing to service Securitized Loans for
Xxxxxxx
Mac. The Servicer is a member in good standing of the MERS system, if
applicable;
(h)
No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished by the Servicer pursuant to this Agreement or in connection with
the
transactions contemplated hereby contains any untrue material statement of
fact
or omits to state a material fact necessary to make the statements contained
therein not misleading; and
(i)
No
Commissions to Third Parties.
The
Servicer has not dealt with any broker or agent or anyone else, other than
the
Sub-Servicer, who might be entitled to a fee or commission in connection
with
this transaction other than the Seller.
Section
6.02 Remedies
for Breach of Representations and Warranties of the Servicer.
It
is
understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the engagement of the Servicer to perform the
servicing responsibilities as of any Closing Date hereunder and the delivery
of
the Servicing Files to the Servicer and shall inure to the benefit of the
Seller, any Depositor, the Master Servicer and each Trust and Trustee. Upon
discovery by any of the Servicer, the Master Servicer, the Trustee, any
Depositor or the Seller of a breach of any of the foregoing representations
and
warranties which materially and adversely affects the ability of the Servicer,
together with its designated sub-servicer, to perform its duties and obligations
under this Agreement or otherwise materially and adversely affects the value
of
the Securitized Loans, the Mortgaged Property, the priority of the security
interest on such Mortgaged Property or the interest of the Seller, any
Depositor, the Master Servicer, the related Trust or the related Trustee,
the
party discovering such breach shall give prompt written notice to the
others.
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Within
60
days of the earlier of either discovery by or notice to the Servicer of a
breach
of a representation or warranty set forth in Section 6.01 which materially
and
adversely affects the ability of the Servicer, together with its designated
sub-servicer, to perform its duties and obligations under this Agreement
or
otherwise materially and adversely affects the value of the Securitized Loans,
the Mortgaged Property or the priority of the security interest on such
Mortgaged Property, the Servicer shall use its best efforts promptly to cure
such breach in all material respects and, if such breach cannot be cured,
the
Servicer shall, at the option of the Trustee, assign the Servicer’s rights and
obligations under this Agreement (or respecting the affected Securitized
Loans)
with respect to a Trust to a successor servicer selected by the related Trustee
with the prior consent and approval of the Master Servicer. Such assignment
shall be made in accordance with Section 9.01 and 9.02.
In
addition, the Servicer shall indemnify the Seller, the Master Servicer, any
Depositor and each Trustee and hold each of them harmless against any Costs
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Servicer's representations and
warranties contained in this Agreement. It is understood and agreed that
the
remedies set forth in this Section 6.02 constitute the sole remedies of the
Seller, the Master Servicer, any Depositor, and each Trust and Trustee hereunder
respecting a breach of the foregoing representations and
warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 6.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Seller,
the
Master Servicer, any Depositor or a Trustee to the Servicer, (ii) failure
by the
Servicer to cure such breach within the applicable cure period, and (iii)
demand
upon the Servicer by the Seller, any Depositor, the Master Servicer or a
Trustee
for compliance with this Agreement.
Section
6.03 Additional
Indemnification by the Servicer; Third Party Claims.
The
Servicer shall indemnify the Seller, any Depositor, each Trustee, the Master
Servicer and each Trust and hold them harmless against any and all Costs
that
any such indemnified party may sustain in any way related to (i) the failure
of
the Servicer to perform its duties and service the related Securitized Loans
in
material compliance with the terms of this Agreement or (ii) the failure
of the
Servicer to cause any event to occur which would have occurred if the Servicer
were applying Accepted Servicing Practices under this Agreement. The Servicer
shall immediately notify the Seller, any related Depositor, the Master Servicer,
the related Trustee or any other relevant party if a claim is made by a third
party with respect to this Agreement or the related Securitized Loans, assume
(with the prior written consent of the indemnified party) the defense of
any
such claim and pay all expenses in connection therewith, including counsel
fees,
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or any indemnified party in respect of such claim and follow any
written instructions received from such indemnified party in connection with
such claim. The Servicer shall be promptly reimbursed by the related Trust
or
Trusts for all amounts advanced by it pursuant to the preceding sentence
except
when the claim is in any way related to the Servicer’s indemnification pursuant
to Section 6.02, or the failure of the Servicer, together with its designated
sub-servicer, to service and administer the Securitized Loans in material
compliance with the terms of this Agreement. In the event a dispute arises
between an indemnified party and the Servicer with respect to any of the
rights
and obligations of the parties pursuant to this Agreement, and such dispute
is
adjudicated in a court of law, by an arbitration panel or any other judicial
process, then the losing party shall indemnify and reimburse the winning
party
for all attorneys’ fees and other costs and expenses related to the adjudication
of said dispute.
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Section
6.04 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that any REMIC elected by a Trust fails to qualify as a REMIC, loses
its
status as a REMIC, or incurs federal, state or local taxes as a result of
a
prohibited transaction or prohibited contribution under the REMIC Provisions
due
to the negligent performance by the Servicer of its duties and obligations
set
forth herein, the Servicer shall indemnify the Holder of the related Residual
Certificate, the Master Servicer, the related Trustee and the related Trust
against any and all losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence; provided,
however,
that the
Servicer shall not be liable for any such Losses attributable to the action
or
inaction of the related Trustee, any related Depositor, the Master Servicer
or
the Holder of such Residual Certificate, as applicable, nor for any such
Losses
resulting from misinformation provided by the Holder of such Residual
Certificate or any such other party on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies
of
the Holder of such Residual Certificate or the related Trust now or hereafter
existing at law or in equity or otherwise. Notwithstanding the foregoing,
however, in no event shall the Servicer have any liability (1) for any action
or
omission that is taken in accordance with and in compliance with the express
terms of, or which is expressly permitted by the terms of, this Agreement,
(2)
for any Losses other than arising out of a negligent performance by the Servicer
of its duties and obligations set forth herein, and (3) for any special or
consequential damages to the related Certificateholders.
ARTICLE
VII.
THE
SERVICER
Section
7.01 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign entity in each jurisdiction in which such qualification is or shall
be
necessary to perform its obligations as contemplated by this
Agreement.
Any
Person 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 Person succeeding to the business of the Servicer,
shall, with the prior written consent of the Master Servicer, 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 or surviving Person shall be an institution (i) having a net worth
of
not less than $15,000,000, and (ii) which is a Xxxxxxx Mac-approved or Xxxxxx
Mae-approved servicer in good standing.
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Section
7.02 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Seller, the Master Servicer,
any
Depositor, any Trust or any Trustee hereunder for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment;
provided, however,
that
this provision shall not protect the Servicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of
any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of 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 shall not be
under
any obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Securitized Loans in accordance with
this Agreement and which in its opinion may involve it in any expense or
liability;
provided, however,
that the
Servicer may, with the consent of the related Trustee and the Master Servicer,
undertake any such action which it deems necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto. In such event,
the Servicer shall be entitled to reimbursement from the related Trust for
the
reasonable legal expenses and costs of such action.
Section
7.03 Limitation
on Resignation and Assignment by the Servicer.
The
Servicer shall neither assign its rights under this Agreement or the servicing
hereunder nor delegate its duties hereunder or any portion thereof, or sell
or
otherwise dispose of all or substantially all of its property or assets without,
in each case, the prior written consent of the Seller, the Master Servicer
and
the related Trustee, which consent, in the case of an assignment of rights
or
delegation of duties, shall be granted or withheld in the discretion of the
Seller, the Master Servicer and the related Trustee, and which consent, in
the
case of a sale or disposition of all or substantially all of the property
or
assets of the Servicer, shall not be unreasonably withheld; provided, that
in
each case, there must be delivered to the Seller, the Master Servicer and
the
related Trustee a letter from the applicable Rating Agency or Rating Agencies
to
the effect that such transfer of servicing or sale or disposition of assets
will
not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates, and provided
further,
without
any consent or notice the Servicer may delegate its servicing duties hereunder
to the Sub-Servicer pursuant to the Sub-Servicing Agreement.
Notwithstanding the foregoing, the Servicer, without the consent of the
Seller,
the Master Servicer and
the
related Trustee, may retain third-party contractors to perform certain servicing
and loan administration functions, including without limitation, hazard
insurance administration, tax payment and administration, flood certification
and administration, collection services and similar functions;
provided, however,
that the retention of such contractors by Servicer shall not limit the
obligation of the Servicer to service the Securitized Loans pursuant to the
terms and conditions of this Agreement.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
with respect to the Securitized Loans in a Trust except by mutual consent
of the
Seller, the Master Servicer and the related Trustee or upon the determination
that its duties hereunder are no longer permissible under applicable law
and
such incapacity cannot be cured by the Servicer. Any such determination
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Seller, the Master Servicer and the
related Trustee which Opinion of Counsel shall be in form and substance
acceptable to the Seller, the Master Servicer and the related Trustee. No
such
resignation shall become effective until a successor acceptable to the Master
Servicer shall have assumed the Servicer’s responsibilities and obligations
hereunder in the manner provided in Section 9.01.
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Without
in any way limiting the generality of this Section 7.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell
or
otherwise dispose of all or substantially all of its property or assets,
without
the prior written consent of the Seller, the Master Servicer and the Trustee
(except as provided by the first paragraph of this Section 7.03 and Section
7.04), then such parties shall have the right to terminate this Agreement
upon
notice given as set forth in Section 8.01, without any payment of any penalty
or
damages and without any liability whatsoever to the Servicer or any third
party.
Section
7.04 Sub-Servicing
Agreements; Sub-Servicing Acknowledgment Agreement; Successor
Sub-Servicer.
(a)
The
Servicer may enter into sub-servicing agreements for any servicing and
administration of the Securitized Loans with any institution which (i) is
an
approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated in writing,
and
(ii) represents and warrants that it is in compliance with the laws of each
state as necessary to enable it to perform its obligations under such
sub-servicing agreement. For this purpose, sub-servicing shall not be deemed
to
include the use of a tax service, or services for reconveyance, insurance
or
brokering REO Property. The Servicer shall give prior written notice to the
Master Servicer and the Trustee of the appointment of any sub-servicer and
shall
furnish to the Master Servicer and the Trustee a copy of such sub-servicing
agreement. For purposes of this Agreement, the Servicer shall be deemed to
have
received payments on Securitized Loans immediately upon receipt by any
sub-servicer of such payments. Any such sub-servicing agreement shall be
acceptable to the Master Servicer and the related Trustee and shall be
consistent with and not violate the provisions of this Agreement. Each
sub-servicing agreement shall provide that a successor servicer shall have
the
option to terminate such agreement without payment of any fees if the
predecessor Servicer is terminated or resigns.
(b)
The
Servicer may terminate any sub-servicing agreement to which it is a party
in
accordance with the terms and conditions of such sub-servicing agreement
and
either itself directly service the related Securitized Loans or enter into
a
sub-servicing agreement with a successor sub-servicer that qualifies under
Section 7.04(a).
(c)
Notwithstanding
any sub-servicing agreement or the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a sub-servicer or reference
to actions taken through a sub-servicer or otherwise, the Servicer shall
remain
obligated and primarily liable to the Trustee, the Master Servicer, the Trust
and the Certificateholders for the servicing and administering of the
Securitized Loans in accordance with the provisions hereof without diminution
of
such obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the sub-servicer and to
the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Securitized Loans. The Servicer shall
be
entitled to enter into any agreement with a sub-servicer for indemnification
of
the Servicer by such sub-servicer and nothing contained in this Agreement
shall
be deemed to limit or modify such indemnification.
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Section
7.05 Inspection.
The
Servicer shall offer each Trustee and the Master Servicer, upon reasonable
advance notice, during normal business hours, access to all records maintained
by the Servicer in respect of its rights and obligations hereunder and access
to
officers of the Servicer responsible for such obligations. Upon request,
the
Servicer shall furnish to each Trustee and the Master Servicer its most recent
publicly available financial statements and such other information relating
to
its capacity to perform its obligations under this Agreement.
ARTICLE
VIII.
TERMINATION
Section
8.01 Termination
for Cause.
This
Agreement shall be terminable at the option of the Master Servicer or the
related Trustee if any of the following events of default exist on the part
of
the Servicer:
(i)
any
failure by the Servicer to remit to the Master Servicer any payment required
to
be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been received by the
Servicer from the Master Servicer or a related Trustee; or
(ii)
failure
by the Servicer duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Servicer set forth in this
Agreement which continues unremedied for a period of 15 days following the
Servicer’s receipt of written notice of such failure from the Master Servicer or
a related Trustee; or
(iii)
failure
by the Servicer to maintain its license or to cause its designated sub-servicer
to do business or service residential Securitized Loans in any jurisdiction,
if
required by such jurisdiction, where a Mortgaged Property is located;
or
(iv)
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, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days;
or
(v)
the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
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(vi)
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 insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(vii)
the
Servicer ceases to meet or to cause its designated sub-servicer to meet the
qualifications of a Xxxxxx Mae or Xxxxxxx Mac seller/servicer; or
(viii)
the
Servicer attempts to assign the servicing of the Securitized Loans or its
right
to servicing compensation hereunder or the Servicer attempts to sell or
otherwise dispose of all or substantially all of its property or assets or
to
assign this Agreement or the servicing responsibilities hereunder or to delegate
its duties hereunder or any portion thereof, in each case without complying
fully with the provisions of Section 7.03 or Section 7.04.
In
each
and every such case, so long as an event of default shall not have been remedied
within the applicable cure period, in addition to whatever rights the Master
Servicer or a related Trustee may have at law or equity to damages, including
injunctive relief and specific performance, the Trustee or the Master Servicer,
by notice in writing to the Servicer, and with the consent of the other party,
may terminate all the rights and obligations of the Servicer under this
Agreement and in and to the servicing contract established hereby and the
proceeds thereof.
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer under this Agreement, whether with respect to the Securitized Loans
or
otherwise, shall pass to and be vested in a successor servicer appointed
by the
Trustee or the Master Servicer, as the case may be, with the consent of the
other party. Upon written request from the Master Servicer, the Servicer
shall
prepare, execute and deliver to the successor servicer or the Trustee any
and
all documents and other instruments, place in such successor’s possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer and endorsement or assignment of the Securitized
Loans and related documents, at the Servicer’s sole expense. The Servicer shall
cooperate with the Master Servicer and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder, including
without limitation, the transfer to such successor for administration by
it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to
the
Securitized Loans.
By
a
written notice, the Trustee or the Master Servicer, with the consent of the
other party, may waive any default by the Servicer in the performance of
its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement.
No
such waiver shall extend to any subsequent or other default or impair any
right
consequent thereon except to the extent expressly so waived.
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Section
8.02 Termination
Without Cause.
(a)
This
Agreement shall terminate upon: (i) the later of (a) the distribution of
the
final payment or liquidation proceeds on the last Securitized Loan to the
Master
Servicer or the Trust, and (b) the disposition of all REO Property acquired
upon
foreclosure of the last Securitized Loan and the remittance of all funds
due
hereunder or (ii) mutual consent of the Servicer and the Master Servicer
in
writing, provided such termination is also acceptable to the applicable Rating
Agency or Rating Agencies. In addition, with the prior written consent of
the
Master Servicer, the Seller or its designee may terminate this Agreement
with
respect to all of the Securitized Loans, without cause, provided, that the
Seller or its designee gives the Servicer 30 days’ notice. Any such notice of
termination shall be in writing and delivered to the Servicer and the Master
Servicer by registered mail to the address set forth in Section 9.03. The
Seller
or its designee and the Servicer shall comply with the termination procedures
set forth in Section 9.01 hereof. All unreimbursed Servicing Fees, Servicing
Advances and Monthly Advances still owing the Servicer shall be paid by the
Seller or its designee or the successor servicer from its own funds within
5
Business Days of the date of such termination without right of reimbursement
from the Trust. In connection with any termination pursuant to clause (ii)
of
the first sentence of this Section 8.02(a), all unreimbursed Servicing Fees,
Servicing Advances and Monthly Advances still owing the Servicer shall be
paid
at the time of such termination by the Trust.
Upon
a
termination of the Servicer for cause pursuant to Section 8.01, all unreimbursed
Servicing Fees, Servicing Advances and Monthly Advances still owing the Servicer
shall be paid by the Trust as such amounts are received from the related
Securitized Loans. In connection with any termination pursuant to the second
sentence of this Section 8.02(a), the Seller or its designee or the successor
servicer will be responsible for reimbursing the Servicer for all unreimbursed
out-of-pocket Servicing Advances, Monthly Advances and Servicing Fees and
other
reasonable and necessary out-of-pocket costs associated with any transfer
of
servicing at the time of such transfer of servicing. Any invoices received
by
the Servicer after termination will be forwarded to the Seller or its designee,
and the Seller or its designee or the successor servicer shall pay such invoices
within five (5) Business Days upon receipt from the Servicer.
(b)
In
the
event that the Servicer decides to terminate its obligations under this
Agreement as set forth in clause (ii) of Section 8.02(a), the Servicer agrees
that it will continue to service the Securitized Loans beyond the prescribed
termination date until such time as the Trustee, using reasonable commercial
efforts, is able to appoint a successor servicer acceptable to and the Master
Servicer and otherwise meeting the characteristics of Sections 7.01 and
9.01.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01 Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02(a)(ii), the Master
Servicer shall (i) within 90 days of the Servicer’s receipt of notice of such
termination, succeed to and assume all of the Servicer’s responsibilities,
rights, duties and obligations under this Agreement (except that the Master
Servicer shall immediately assume all of the obligations of the Servicer
to make
Monthly Advances), or (ii) appoint a successor having the characteristics
set
forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to
all
rights and assume all of the responsibilities, duties and liabilities of
the
Servicer under this Agreement simultaneously with the termination of the
Servicer’s responsibilities, duties and liabilities under this Agreement; or (b)
as a result of termination of the Servicer without cause by the Seller pursuant
to Section 8.02 hereof, the Seller shall appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer’s responsibilities, duties and liabilities under
this Agreement. Any successor to the Servicer shall be subject to the approval
of the Master Servicer and the Trustee and, to the extent required by the
Trust
Agreement, shall be a member in good standing of the MERS system (if any
of the
Securitized Loans are MERS Eligible Securitized Loans, unless such Securitized
Loans are withdrawn from MERS and Assignments of Mortgage are recorded in
favor
of the Trust at the expense of the successor servicer). The final approval
of a
successor servicer shall be conditioned upon the receipt by the Trustee,
the
Master Servicer and the Seller of a letter from the applicable Rating Agency
or
Rating Agencies to the effect that such transfer of servicing will not result
in
a qualification, withdrawal or downgrade of the then-current rating of any
of
the Certificates. In connection with such appointment and assumption, the
Master
Servicer or the Seller, as applicable, may make such arrangements for the
compensation of such successor out of payments on Securitized Loans as it
and
such successor shall agree, provided,
however, that
no
such compensation shall be in excess of the Servicing Fee permitted under
this
Agreement. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of
such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and
shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
servicer shall be appointed pursuant to this Section 9.01, or until the Master
Servicer succeeds to and assumes all of the Servicer’s responsibilities, rights,
duties and obligations pursuant to this Section 9.01, and shall in no event
relieve the Servicer of the representations and warranties made pursuant
to
Section 6.01 and the remedies available to the Trustee, the Trust, the Master
Servicer and the Seller under Section 6.02 and 6.03, it being understood
and
agreed that the provisions of such Sections 6.01, 6.02 and 6.03 shall be
applicable not only to such successor servicer but also to the Servicer
notwithstanding any such resignation or termination of the Servicer, or the
termination of this Agreement. Notwithstanding the foregoing, the Master
Servicer, in its capacity as successor servicer, shall not be responsible
for
the lack of information and/or documents that it cannot obtain through
reasonable efforts.
-44-
Within
a
reasonable period of time, but in no event longer than 30 days after the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer and
endorsement of the Mortgage Notes and related documents, and the preparation
and
recordation of Assignments of Mortgage. The Servicer shall cooperate with
the
Master Servicer or the Seller, as applicable, and such successor in effecting
the termination of the Servicer’s responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor servicer, including
without limitation, the transfer to such successor for administration by
it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to
the
Securitized Loans.
-45-
Any
successor servicer appointed as provided herein shall execute, acknowledge
and
deliver to the Trustee, the Servicer, the Master Servicer and the Seller
an
instrument (i) accepting such appointment, wherein the successor shall make
the
representations and warranties set forth in Section 6.01 (including a
representation that the successor servicer is a member of MERS, unless none
of
the Securitized Loans are MERS Securitized Loans or MERS Eligible Securitized
Loans or any such Securitized Loans have been withdrawn from MERS and
Assignments of Mortgage are recorded in favor of the Trust) and provide for
the
same remedies set forth in Section 6.02 and Section 6.03 herein (ii) an
assumption of the due and punctual performance and observance of each covenant
and condition to be performed and observed by the Servicer under this Agreement,
whereupon such successor servicer shall become fully vested with all the
rights,
powers, duties, responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or termination of this Agreement
pursuant to Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims
that
the Seller, the Depositor, the Master Servicer or the Trustee may have against
the Servicer arising out of the Servicer’s actions or failure to act prior to
any such termination or resignation. In addition, in the event any successor
servicer is appointed pursuant to Section 8.03 of this Agreement, such successor
servicer must satisfy the conditions relating to the transfer of servicing
set
forth in the Trust Agreement.
The
Servicer shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Securitized Loan documents and
related documents and statements held by it hereunder and the Servicer shall
account for all funds and shall execute and deliver such instruments and
do such
other things as may reasonably be required to more fully and definitively
vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Trustee, the Master Servicer, the Seller and the Depositor of such appointment
in accordance with the procedures set forth in Section 9.03.
Section
9.02 Costs.
The
Seller shall pay any legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities pursuant to Section 9.01 or pursuant to any other provision
of
this Agreement, including fees for delivering Servicing Files, shall be paid
by
the Seller. Subject to Sections 2.03 and 3.01(a), the Seller shall pay the
costs
associated with the preparation, delivery and recording of Assignments of
Mortgages.
-46-
Section
9.03 Notices.
All
demands, notices, consents, reports, directions, instructions, statements
and
other communications hereunder shall be in writing and shall be deemed to
have
been duly given if sent by facsimile or mailed by overnight courier, addressed
as follows (or such other address as may hereafter be furnished to the other
parties by like notice):
|
(i)
|
if
to the Seller:
|
Xxxxxxxxx
Mortgage Home Loans, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx, Xxx Xxxxxx 00000
Attention:
Xxxxxxx Xxxxx
Facsimile:
(000) 000-0000
|
(ii)
|
if
to the Servicer:
|
Xxxxxxxxx
Mortgage Home Loans, Inc.
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx, Xxx Xxxxxx 00000
Attention:
Xxxxxxx Xxxxx
Facsimile:
(000) 000-0000
|
(iii)
|
if
to the Master Servicer:
|
On
or
before May 1, 2002:
Xxxxx
Fargo Bank Minnesota,
National
Association
00000
Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxxx Master Servicing
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
After
May 1, 2002:
Xxxxx
Fargo Bank Minnesota,
National
Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxxx Master Servicing
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
-47-
|
(iv)
|
if
to the Trustee:
|
The
address shown in the Transfer Notice
Any
such
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee.
Section
9.04 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Securitized Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section
9.05 No
Personal Solicitation.
From
and
after the related Closing Date, the Servicer hereby agrees that it will not
take
any action or permit or cause any action to be taken by any of its agents
or
affiliates, or by any independent contractors or independent mortgage brokerage
companies on the Servicer’s behalf, to personally, by telephone or mail, solicit
the Mortgagor under any Securitized Loan for the purpose of refinancing such
Securitized Loan; provided, that the Servicer may solicit any Mortgagor for
whom
the Servicer has received a request for verification of mortgage status,
a
request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Securitized Loan,
or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by the Servicer or any of its affiliates
which
(i) concern optional insurance products or other additional projects or (ii)
are
directed to mailing lists or customers of affiliated companies or the general
public at large, including without limitation, mass mailings based on
commercially acquired mailing lists, newspaper, radio and television
advertisements shall not constitute solicitation under this Section 9.05
nor is
the Servicer prohibited from responding to unsolicited requests or inquiries
made by a Mortgagor or an agent of a Mortgagor.
Section
9.06 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts
shall
constitute one and the same instrument.
-48-
Section
9.07 Place
of Delivery and 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 THE LAWS OF THE STATE OF
NEW
YORK, NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE
CONTRARY.
Section
9.08 Further
Agreements.
The
Seller and the Servicer each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section
9.09 Intention
of the Parties.
It
is the
intention of the parties that the Seller is conveying, and the Servicer is
receiving, only a contract for servicing the Securitized Loans. Accordingly,
the
parties hereby acknowledge that each Trust remains the sole and absolute
owner
of the related Securitized Loans and all rights (other than the servicing
rights) related thereto.
Section
9.10 Successors
and Assigns; Assignment of Servicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Servicer, the Seller , each Trustee (with respect to related Securitized
Loans),
and the Master Servicer and their respective successors and assigns. This
Agreement shall not be assigned, pledged or hypothecated by the Servicer
to a
third party except in accordance with Section 7.03 and shall not be assigned,
pledged or hypothecated by the Seller except as and to the extent provided
in
Section 9.11.
Section
9.11 Assignment
by Seller.
The
Seller shall have the right, upon notice to but without the consent of the
Servicer, to assign, in whole or in part (but exclusive of such Seller’s rights
and obligations as owner of the servicing rights relating to Securitized
Loans),
its interest under this Agreement with respect to Securitized Loans which
will
be owned by the related Trust to the related Depositor, which in turn shall
assign such rights to such Trust, and such Trust then shall succeed to all
such
rights of the Seller under this Agreement. All references to the Seller in
this
Agreement shall be deemed to include its assignee or designee and any subsequent
assignee or designee, specifically including, with respect to each Securitized
Loan, the related Trust and the related Trustee.
Section
9.12 Amendment.
This
Agreement may be amended in writing from time to time by the parties, with
the
prior written consent of each Trustee of each Trust affected thereby;
provided
that the
party requesting such amendment shall, at its own expense, provide the other
parties and each such Trustee with an Opinion of Counsel that (i)such amendment
is permitted under the terms of this Agreement, (ii) the Servicer has complied
with all applicable requirements of this Agreement, and (iii)) such amendment
will not materially adversely affect the interest of any Trust or the related
Certificateholders in the Securitized Loans.
-49-
Any
such amendment shall be deemed not to adversely affect in any material respect
any of the interest of Certificateholders in the Securitized Loans if each
related Trustee receives written confirmation from the applicable Rating
Agency
or Rating Agencies that such amendment will not cause such Rating Agency
or
Rating Agencies to reduce, qualify or withdraw the then current rating assigned
to the related Certificates (and any Opinion of Counsel requested by a party
in
connection with any such amendment may rely expressly on such confirmation
as
the basis therefor).
Section
9.13 Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing, signed by the party against whom such waiver
or
modification is sought to be enforced.
Section
9.14 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
9.15 Intended
Third Party Beneficiary.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree
that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that each Trustee and each Trust receive the benefit of the provisions
of this Agreement as an intended third party beneficiary of this Agreement
to
the extent of such provisions with respect to the related Securitized Loans.
The
Servicer shall have the same obligations to the related Trustee and the related
Trust as if it were a party to this Agreement, and each such Trustee and
Trust
shall have the same rights and remedies to enforce the provisions of this
Agreement as if it were a party to this Agreement. The Servicer shall only
take
direction from the Master Servicer (if direction by the Master Servicer is
required under this Agreement) unless otherwise directed by this Agreement.
Notwithstanding the foregoing, all rights and obligations of a Trust, the
related Trustee and the Master Servicer hereunder (other than the right to
indemnification) with respect to the related Securitized Loans shall terminate
upon the termination of such Trust pursuant to the related Trust
Agreement.
Section
9.16 Confidentiality.
The
Trustee and the Master Servicer hereby agree to hold and treat all Confidential
Information (as defined below) in confidence and in accordance with this
Section
9.16. Such Confidential Information will not, without the prior written consent
of the Servicer, be disclosed or used by any Trustee or the Master Servicer
or
by its subsidiaries, affiliates, directors, officers, employees, agents or
controlling persons (collectively, the “Information Recipients”) other than for
the purposes of this Agreement or for the purposes specified in the related
Trust Agreement. Disclosure that is not in violation of the Right to Financial
Privacy Act of 1978, as amended, the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the
“G-L-B
Act”) or other applicable law by the Trustee or the Master Servicer of any
Confidential Information at the request of its outside auditors or governmental
regulatory authorities in connection with an examination of any Trustee or
the
Master Servicer by any such authority or for the purposes specified in any
Trust
Agreement or this Agreement shall not constitute a breach of its obligations
under this Section 9.19, and shall not require the prior consent of the
Servicer.
-50-
As
used
herein, “Confidential Information” means non-public personal information (as
defined in the G-L-B Act and its enabling regulations issued by the Federal
Trade Commission) regarding borrowers. Confidential Information shall not
include information which (i) is or becomes generally available to the public
other than as a result of disclosure by a Trustee or the Master Servicer
or any
of its Information Recipients; (ii) was available to the related Trustee
or the
Master Servicer on a non-confidential basis from a person or entity other
than
the Servicer prior to its disclosure by the Servicer to such Trustee; (iii)
is
required to be disclosed by a governmental authority or related governmental
agencies or as otherwise required by law; (iv) becomes available to the related
Trustee or the Master Servicer on a non-confidential basis from a person
or
entity other than the Servicer who, to the best knowledge of the related
Trustee
or the Master Servicer, is not otherwise bound by a confidentiality agreement
with the Servicer, and is not otherwise prohibited from transmitting the
information to such Trustee or the Master Servicer, or (v) is released pursuant
to the Trust Agreement or this Agreement.
Section
9.17 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c)
references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e)
the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f)
the
term
“include” or “including” shall mean by reason of enumeration.
-51-
Section
9.18 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be as admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers thereunto duly authorized as of the date first
above written.
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Seller
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Servicer
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as
Master
Servicer
By:
/s/
Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Vice President
-52-
EXHIBIT
A
FORM
OF
TRANSFER NOTICE
[Date]
Xxxxxxxxx
Mortgage Home Loans, Inc., as Servicer
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx,
Xxx Xxxxxx 00000
Cenlar
FSB, as Sub-Servicer
X.X.
Xxx
00000
000
Xxxxxxxx Xxxxxxxxx
Xxxxxxx,
Xxx Xxxxxx 00000
You
are
hereby notified that as of [date] (the “Effective Date”), the undersigned has
transferred the Securitized Loans listed on the attached schedule (the
“Securitized Loans”) to Xxxxxxxxx Mortgage Securities Trust 200_ - __ (the
“Trust”). The attached schedule also contains a field which sets forth the
Servicing Fee Rate(s) and the Prepayment Charge Schedule. You agree to service
such Securitized Loans as Securitized Loans under that certain Servicing
Agreement dated as of March 1, 2002 (the “Servicing Agreement”), by and among
Xxxxxxxxx Mortgage Home Loans, Inc. (“TMHL”), as servicer (the “Servicer”),
TMHL, as seller (the “Seller”) and Xxxxx Fargo Bank Minnesota, National
Association, as master Servicer (the “Master Servicer”), and that certain
Sub-Servicing Acknowledgment Agreement dated of even date therewith (the
“Sub-Servicing Agreement”), by and between the Servicer and Cenlar FSB (the
“Sub-Servicer”). In addition, you shall recognize the Trust or the Master
Servicer or ____________________ (the “Trustee”), acting as agents for the
Trust, as having the same rights as TMHL as Seller under the Servicng Agreement
with respect to such transferred Securitized Loans. The address for notice
for
the Trustee for these Securitized Loans is
__________________________________.
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Seller
By:________________________________________
Acknowledged
by:
XXXXXXXXX
HOME SECURITIZED LOANS, INC., as Servicer
By:_______________________________
Name:
Title:
CENLAR
FSB, as Sub-Servicer
By:_______________________________
Name:
Title:
A-1
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_______
__, 20__
To: ___________________________
___________________________
___________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of March 1, 2002, by and
among
Xxxxxxxxx Home Mortgage Loans, Inc. (“TMHL”), as servicer (the “Servicer”),
TMHL, as seller (the “Seller”) and Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the “Master Servicer”) (the “Agreement”), we
hereby authorize and request you to establish an account as the Custodial
Account pursuant to Section 3.03 of the Agreement, to be designated as
“Xxxxxxxxx Mortgage Home Loans, Inc., as Servicer for Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, and in trust for one
or
more Xxxxxxxxx Mortgage Securities Trusts.” All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
XXXXXXXXX
MORTGAGE HOME LOANS, INC., as Servicer
By:_____________________________________________
Name:
Title:
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
_________________________________________
Depository
By:______________________________________
Name:
Title:
Date:
B-1
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
_______
__, 20__
To:___________________________
___________________________
___________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of March 1, 2002, by and
among
Xxxxxxxxx Home Mortgage Loans, Inc. (“TMHL”), as servicer (the “Servicer”),
TMHL, as seller (the “Seller”) and Xxxxx Fargo Bank Minnesota, National
Association, as master servicer (the “Master Servicer”) (the “Agreement”), we
hereby authorize and request you to establish an account as the Escrow Account
pursuant to Section 3.05 of the Agreement, to be designated as “Xxxxxxxxx
Mortgage Home Loans, Inc., as Servicer for Xxxxx Fargo Bank Minnesota, National
Association, as Master Servicer, and in trust for one or more Xxxxxxxxx Mortgage
Securities Trusts.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
as
Servicer
By:
________________________________________
Name:
Title:
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
_____________________________________________
Depository
By:
__________________________________________
Name:
Title:
Date:
C-1
EXHIBIT
D
Wells
Fargo Bank Master Servicing Default Reporting
DATA
FIELD REQUIREMENTS
Data
must
be submitted to Xxxxx Fargo Bank in an Excel spreadsheet format with fixed
field
names and data type. The Excel spreadsheet should be used as a template
consistently
every
month when submitting data.
Table:
Delinquency
|
Name
|
Type
|
Character
Size
|
|
Servicer
Loan #
|
Number
(Double)
|
10
|
|
Investor
Loan #
|
Number
(Double)
|
10
|
|
Servicer
Investor #
|
Text
|
3
|
|
Borrower
Name
|
Text
|
20
|
|
Xxxxxxx
|
Xxxx
|
00
|
|
Xxxxx
|
Xxxx
|
0
|
|
Xxx
|
Xxxx
|
10
|
|
Due
Date
|
Date/Time
|
8
|
|
Xxxxx
Fargo Action Code
|
Text
|
2
|
|
FC
Approval Date
|
Date/Time
|
8
|
|
File
Referred to Attorney
|
Date/Time
|
8
|
|
NOD
|
Date/Time
|
8
|
|
Complaint
Filed
|
Date/Time
|
8
|
|
Sale
Published
|
Date/Time
|
8
|
|
Target
Sale Date
|
Date/Time
|
8
|
|
Actual
Sale Date
|
Date/Time
|
8
|
|
Loss
Mit Approval Date
|
Date/Time
|
8
|
|
Loss
Mit Type
|
Text
|
5
|
|
Loss
Mit Code
|
Number
|
2
|
|
Loss
Mit Estimated Completion Date
|
Date/Time
|
8
|
|
Loss
Mit Actual Completion Date
|
Date/Time
|
8
|
|
Loss
Mit Broken Plan Date
|
Date/Time
|
8
|
|
BK
Chapter
|
Text
|
6
|
|
BK
Filed Date
|
Date/Time
|
8
|
|
Post
Petition Due
|
Date/Time
|
8
|
|
Motion
for Relief
|
Date/Time
|
8
|
|
Lift
of Stay
|
Date/Time
|
8
|
|
Reason
For Delinquency
|
Text
|
10
|
|
Occupant
Code
|
Text
|
10
|
|
Eviction
Start Date
|
Date/Time
|
8
|
|
Eviction
Completed Date
|
Date/Time
|
8
|
|
List
Price
|
Currency
|
8
|
|
List
Date
|
Date/Time
|
8
|
D-1
|
Accepted
Offer Price
|
Currency
|
8
|
|
Accepted
Offer Date
|
Date/Time
|
8
|
|
Estimated
REO Effective Date
|
Date/Time
|
8
|
|
Actual
REO Sale Date
|
Date/Time
|
8
|
|
Servicer
Comments
|
Text
|
200
|
|
Modification
Exp. Date
|
Date/Time
|
8
|
|
Xxxxxx
Xxx Del. Status Code
|
Text
|
2
|
|
Xxxxxx
Mae Del. Reason Code
|
Text
|
2
|
|
BK
Discharge/Dismissal Date
|
Date/Time
|
8
|
|
Property
Damage Date
|
Date/Time
|
8
|
|
Property
Repair Amount
|
Currency
|
8
|
|
BK
Hearing Date
|
Date/Time
|
8
|
|
POC
Date
|
Date/Time
|
8
|
|
POC
Amount
|
Currency
|
8
|
|
BK
Case Number
|
Text
|
30
Maximum
|
|
F/C
Sale Amount
|
Currency
|
8
|
|
Redemption
Exp. Date
|
Date/Time
|
8
|
|
Property
Value Date
|
Date/Time
|
8
|
|
Current
Property Value
|
Currency
|
8
|
|
Repaired
Property Value
|
Currency
|
8
|
|
BPO
Y/N
|
Text
|
1
|
|
Current
LTV
|
Currency
|
8
|
|
Property
Condition Code
|
Text
|
2
|
|
Property
Inspection Date
|
Date/Time
|
8
|
|
MI
Cancellation Date
|
Date/Time
|
8
|
|
MI
Claim Filed Date
|
Date/Time
|
8
|
|
MI
Claim Amount
|
Currency
|
8
|
|
MI
Claim Reject Date
|
Date/Time
|
8
|
|
MI
Claim Resubmit Date
|
Date/Time
|
8
|
|
MI
Claim Paid Date
|
Date/Time
|
8
|
|
MI
Claim Amount Paid
|
Currency
|
8
|
|
Pool
Claim Filed Date
|
Date/Time
|
8
|
|
Pool
Claim Amount
|
Currency
|
8
|
|
Pool
Claim Reject Date
|
Date/Time
|
8
|
|
Pool
Claim Paid Date
|
Date/Time
|
8
|
|
Pool
Claim Amount Paid
|
Currency
|
8
|
|
Pool
Claim Resubmit Date
|
Date/Time
|
8
|
|
FHA
Part A Claim Filed Date
|
Date/Time
|
8
|
|
FHA
Part A Claim Amount
|
Currency
|
8
|
|
FHA
Part A Claim Paid Date
|
Date/Time
|
8
|
|
FHA
Part A Claim Paid Amount
|
Currency
|
8
|
|
FHA
Part B Claim Filed Date
|
Date/Time
|
8
|
|
FHA
Part B Claim Amount
|
Currency
|
8
|
|
FHA
Part B Paid Date
|
Date/Time
|
8
|
|
FHA
Part B Claim Paid Amount
|
Currency
|
8
|
|
V
A
Claim Filed Date
|
Date/Time
|
8
|
D-2
|
V
A
Claim Paid Date
|
Date/Time
|
8
|
|
V
A
Claim Paid Amount
|
Currency
|
8
|
The
Action Code Field should show the applicable numeric code to indicate that
a
special action is being taken. The Action Codes are the following:
12-Relief
Provisions (i.e. Sailors & Soldiers Relief Act)
15-Bankruptcy/Litigation
20-Loss
Mitigation-Workout
30-Referred
for Foreclosure
00-Xxxxxx
00-Xxxxxxxxxx
00-XXX-Xxxx
for Sale
71-
Third
Party Sale/Condemnation
72-REO-Pending
Conveyance-Pool Insurance claim filed
Xxxxx
Fargo Bank will accept alternative Action Codes to those above, provided
that
the Codes are consistent with industry standards. If Action Codes other than
those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description
of Action Codes:
Action
Code 12- To report a Securitized Loan for which the Borrower has been granted
relief for curing a delinquency.
Action
Code 15 - To report a borrower filing bankruptcy and for all active
bankruptcies.
Action
Code 20 - To report that the Borrower has agreed to some form of loss
mitigation/workout. Examples of these include Short Sale, Deed-in-Lieu of
Foreclosure, Formal Forbearance Agreements, Modifications, etc.
Action
Code 30 - To report a loan that has been referred to attorney for
foreclosure.
Action
Code 60 - To report that a Securitized Loan has been paid in full either
at, or
prior to, maturity.
Action
Code 65- To report that the Servicer is repurchasing the Securitized
Loan.
Action
Code 70 -To report that a Securitized Loan has been foreclosed or a deed-in-lieu
of foreclosure has been accepted, and the Servicer, on behalf of the owner
of
the Securitized Loan, has acquired the property and may dispose of
it.
Action
Code 71 -To report that a Securitized Loan has been foreclosed and a third
party
acquired the property, or a total condemnation of the property has
occurred.
Action
Code 72 -To report that a Securitized Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. Also to be used for
completed HUDNA foreclosures where the property is pending conveyance to
HUDNA.
D-3
The
Loss
Mit Type field should show the approved Loss Mitigation arrangement. The
following are acceptable:
|
·
|
ASU
M - Approved Assumption
|
|
·
|
BAP
- Borrower Assistance Program
|
|
·
|
CO
- Charge Off
|
|
·
|
DIL
- Deed-in-Lieu
|
|
·
|
FFA
- Formal Forbearance Agreement
|
|
·
|
MOD
- Loan Modification
|
|
·
|
PRE
- Pre-Sale
|
|
·
|
SS
- Short Sale
|
|
·
|
MISC-
Anything else approved by the PMI or Pool
Insurer
|
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. The
acceptable codes are:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
D-4
The
RFD
field should show the Reason for Default. The acceptable codes are below,
or we
can accept Xxxxxx Xxx Delinquency Reason Codes.
|
Delinquency
Code
|
Delinquency
Description
|
|
AB
|
Abandonment
of property
|
|
AA
|
Arm
Adjustment Problem
|
|
BK
|
Bankruptcy
|
|
06
|
Borrower
Complaint
|
|
BOC
|
Borrower
Out of Country
|
|
BU
|
Business
Failure
|
|
CL
|
Casualty
Loss
|
|
JC
|
Change
in Job
|
|
CD
|
Chronic
Delinquent
|
|
CSP
|
Chronic
Slow Pay
|
|
CI
|
Commission
Income
|
|
DIF
|
Death
in Family
|
|
08
|
Deceased
|
|
00
|
Defective
Loan
|
|
DT
|
Delinquent
Property Tax
|
|
FIRE
|
Disability
|
|
DS
|
Disregard
|
|
Dl
|
Divorce
|
|
DD
|
Domestic
Difficulties
|
|
EA
|
Earthquake
|
|
ENV
|
Environmental
|
|
ECO
|
Excessive
Credit Obligation
|
|
FA
|
Family
Death
|
|
FE
|
Family
Emergency
|
|
FI
|
Family
Illness
|
|
FD
|
Financial
Difficulty
|
|
05
|
Foreclosure
or Borrower moved or skipped
|
|
FFP
|
Formal
Forbearance Plan
|
|
FR
|
Fraud
|
|
G
|
Garnishment
|
|
HU
|
Hurricane
|
|
IT
|
Illegal
Transfer
|
|
B1
|
Illness
of Borrower
|
|
IP
|
Inability
to Sell Property
|
|
IC
|
Incarcerated
|
|
IN
|
Income
Reduction
|
|
LIT
|
Involved
in Litigation
|
|
IRS
|
IRS
Xxxx
|
|
XX
|
Judgment
|
|
LB
|
Language
Barrier
|
|
LM
|
Legal
Matter
|
D-5
|
LS
|
Legal
Separation
|
|
MA
|
Marital
Difficulties
|
|
ME
|
Medical
|
|
03
|
Medical/Illness
in Family
|
|
MD
|
Mortgagor
Death
|
|
ND
|
Natural
Disaster
|
|
NC
|
No
Contact with borrower
|
|
NSF
|
Non
Sufficient Funds
|
|
09
|
Other
|
|
01
|
Over
Obligated
|
|
OV
|
Overextended
|
|
PAD
|
Payment
Dispute
|
|
PP
|
Payment
Plan Established
|
|
POP
|
Payoff
Pending
|
|
PE
|
Pending
Sale
|
|
PS
|
Previous
Servicer Problem
|
|
PB
|
Promise
to Pay Broken
|
|
PR
|
Property
Damage
|
|
PD
|
Property
Devaluation
|
|
REFI
|
Refinance
Pending
|
|
RELO
|
Relocation
(Job Related)
|
|
JRP
|
Relocation
(Personal)l
|
|
RE
|
Rental
|
|
10
|
REO
|
|
SI
|
Seasonal
Income
|
|
SE
|
Self
Employed
|
|
SP
|
Servicing
Problems
|
|
SR
|
Slow
Receivables
|
|
02
|
Unemployed/Reduced
Income
|
|
UE
|
Unemployment
|
|
UK
|
Unknown
|
|
UTP
|
Unwilling
to Pay
|
D-6
XXXXX
FARGO BANK MINNESOTA, N.A.
Form
332
Calculation
of Realized Loss
Purpose
To
provide the Servicer with a form for the calculation of any Realized Loss
(or
gain) as a result of a Securitized Loan having been foreclosed and
Liquidated.
Distribution
The
Servicer will prepare the form in duplicate and send the original together
with
evidence of conveyance of title and appropriate supporting documentation
to the
Master Servicer with the Monthly Accounting Reports which supports the
Securitized Loan’s removal from the Securitized Loan Activity Report. The
Servicer will retain the duplicate for its own records.
Due
Date
With
respect to any liquidated Securitized Loan, the form will be submitted to
the
Master Servicer no later than the date on which statements are due to the
Master
Servicer under Section 4.02 of this Agreement (the “Statement Date”) in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Securitized Loan; provided, that
if
such Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Securitized
Loan, then the form will be submitted on the first Statement Date occurring
after the 30th day following receipt of final liquidation proceeds and
supporting documentation.
Preparation
Instructions
The
numbers on the form correspond with the numbers listed below.
|
1.
|
The
actual Unpaid Principal Balance of the Securitized
Loan.
|
|
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.
|
|
3-7.
|
Complete
as necessary. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, canceled checks, etc., to document
the
expense. Entries not properly documented will not be reimbursed
to the
Servicer.
|
|
8.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Securitized Loan as calculated on a monthly
basis.
|
10. The
total
of lines 1 through 9.
Credits
|
11-17.
|
Complete
as necessary. All line entries must be supported by copies of the
appropriate claims forms, statements, payment checks, etc. to document
the
credit. If the Securitized 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
16.
|
18. The
total
of lines 11 through 17.
Total
Realized Loss (or Amount of Any Gain)
|
19.
|
The
total derived from subtracting line 18 from 10. If the amount represents
a
realized gain, show the amount in parenthesis (
)
|
D-7
XXXXX
FARGO BANK MINNESOTA, N.A.
CALCULATION
OF REALIZED LOSS
XXXXX
FARGO BANK MINNESOTA, N.A. Trust: ___________________________
Prepared
by: __________________ Date:
_______________
Phone:
______________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK MINNESOTA, N.A.
Loan
No._____________________________
Borrower’s
Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation
and Acquisition Expenses:
|
Actual
Unpaid Principal Balance of Securitized Loan
|
$
_______________(1)
|
|
Interest
accrued at Net Rate
|
________________(2)
|
|
Attorney’s
Fees
|
________________(3)
|
|
Taxes
|
________________(4)
|
|
Property
Maintenance
|
________________(5)
|
|
MI/Hazard
Insurance Premiums
|
________________(6)
|
|
Hazard
Loss Expenses
|
________________(7)
|
|
Accrued
Servicing Fees
|
________________(8)
|
|
Other
(itemize)
|
________________(9)
|
|
_________________________________________
|
$
_________________
|
|
_________________________________________
|
__________________
|
|
_________________________________________
|
__________________
|
|
_________________________________________
|
__________________
|
|
Total
Expenses
|
$
______________(10)
|
|
Credits:
|
|
|
Escrow
Balance
|
$
______________(11)
|
|
HIP
Refund
|
________________(12)
|
|
Rental
Receipts
|
________________(13)
|
|
Hazard
Loss Proceeds
|
________________(14)
|
|
Primary
Mortgage Insurance Proceeds
|
________________(15)
|
|
Proceeds
from Sale of Acquired Property
|
________________(16)
|
|
Other
(itemize)
|
________________(17)
|
|
_________________________________________
|
___________________
|
|
_________________________________________
|
___________________
|
|
Total
Credits
|
$________________(18)
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________(19)
|
AMENDMENT
TO SERVICING AGREEMENT
THIS
AMENDMENT to the Servicing Agreement dated as of March 1, 2002, between XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer, XXXXXXXXX
MORTGAGE HOME LOANS, INC. (“TMHL”), as Seller and as Servicer (the “Servicing
Agreement”) is made as of the 1st day of December, 2002, by and between the
MASTER SERVICER, the SERVICER and the SELLER (the “Amendment”).
WITNESSETH:
WHEREAS,
TMHL and the Master Servicer are parties to the Servicing Agreement wherein
the
Servicer has agreed to service Securitized Loans pursuant to the terms of
the
Servicing Agreement;
WHEREAS,
the Master Servicer has requested that certain additional servicing
certifications be provided to the Master Servicer and that certain time periods
for the provision of reports be modified, and the Servicer has agreed to
such
modifications; and
WHEREAS,
the Master Servicer and TMHL desire to amend the Servicing Agreement to reflect
those requirements;
NOW,
THEREFORE, for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as
follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Servicing Agreement.
2. Article
I
entitled “Definitions” is amended as follows:
a. The
definition of “Agreement” is modified to read as follows:
“This
Servicing Agreement, as amended by that certain Amendment to Servicing Agreement
dated as of December 1, 2002, and all other amendments hereof and supplements
hereto.”
b. The
definition of “Sub-Servicing Acknowledgment Agreement” is modified to read as
follows:
“That
certain Sub-Servicing Acknowledgment Agreement, dated as of March 1, 2002,
by
and between the Servicer and the Sub-Servicer, as amended by that certain
Amendment to Sub-Servicing Acknowledgment Agreement, dated as of December
1,
2002 by and between the Servicer and the Sub-Servicer.”
3. Section
5.02 entitled “Annual Audit Report” is amended by:
a. deleting
the phrase “Not more than ninety (90) days after the end of the Servicer’s
fiscal year” in the first sentence; and after the phrase “own expense” add the
following: “use its best efforts by March 20 of each year, but in no event later
than March 30 of each year,”; and
b. deleting
the phrase “commencing with the fiscal year ending December 31, 2002” in the
first sentence. Therefore, Section 5.02 now reads in its entirety as
follows:
The
Servicer shall, at its own expense, use its best efforts by March 20 of each
year, but in no event later than March 30 of each year, cause a firm of
independent public accountants (who may also render other services to Servicer),
which is a member of the American Institute of Certified Public Accountants,
to
furnish to the Seller and the Master Servicer (i) year-end audited (if
available) financial statements of the Servicer and (ii) a statement to the
effect that such firm has examined certain documents and records for the
preceding fiscal year (or during the period from the date of commencement
of
such Servicer’s duties hereunder until the end of such preceding fiscal year in
the case of the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
Servicer’s overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
4. Section
5.03 entitled “Annual Officer’s Certificate” is amended by:
a. deleting
the phrase “Not more than ninety (90) days after the end of the Servicer’s
fiscal year” in the first sentence; and prior to the phrase “deliver to the
Seller” add the following: “using its best efforts by March 20 of each year, but
in no event later than March 30 of each year”; and
b. deleting
the phrase “commencing with the fiscal year ending December 31, 2002” in the
first sentence.
Therefore,
Section 5.03 now reads in its entirety as follows:
The
Servicer, at its own expense, will, using its best efforts by March 20 of
each
year, but in no event later than March 30 of each year, deliver to the Seller
and the Master Servicer a Servicing Officer’s certificate stating, as to each
signer thereof, that (i) a review of the activities of the Servicer during
such
preceding fiscal year and of performance under this Agreement has been made
under such officers’ supervision, and (ii) to the best of such officers’
knowledge, based on such review, the Servicer has fulfilled all its obligations
under this Agreement for such year, or, if there has been a default in the
fulfillment of all such obligations, specifying each such default known to
such
officers and the nature and status thereof including the steps being taken
by
the Servicer to remedy such default.
5. The
following is added as Section 5.04:
Section
5.04. SERVICER’S CERTIFICATION.
a.
An
officer of the Servicer shall, using its best efforts by March 20 of each
year,
but no later than March 30 of each year, (or if not a Business Day, the
immediately preceding Business Day), or at any other time upon thirty (30)
days
written request, execute and deliver an Officer’s Certificate to the Master
Servicer for the benefit of such Master Servicer and its officers, directors
and
affiliates, certifying as to the following matters:
(i)
Based on
my knowledge, the information in the annual statement of compliance furnished
pursuant to Section 5.03, the annual independent public accountant’s servicing
report furnished pursuant to Section 5.02 and all servicing reports, officer’s
certificates and other information relating to the servicing of the Securitized
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;
(ii) The
servicing information required to be provided to the Master Servicer by the
Servicer under this Servicing Agreement has been provided to the Master
Servicer;
(iii) 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 Securitized Loans submitted to the Master Servicer, the Servicer has,
as
of the date of this certification fulfilled its obligations under the Servicing
Agreement; and
(iv) 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 Servicing
Agreement.
b. The
Servicer shall indemnify and hold harmless the Master Servicer and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 5.04 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Servicer agrees that it shall contribute to the amount
paid
or payable by the Master Servicer as a result of losses, claims, damages
or
liabilities of the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand and the
Servicer on the other in connection with a breach of the Servicer’s obligations
under this Section 5.04 or the Servicer’s negligence, bad faith or willful
misconduct in connection therewith.
6. Section
8.01 entitled “Termination for Cause” is amended by:
a. deleting
the word “or” at the end of subsection (vii);
b. deleting
the “.” at the end of subsection (viii) and replacing it with the phrase “;
or”;
c. inserting
the following after subsection (viii):
(ix)
failure by the Servicer to duly perform, within the required time period,
its
obligations under Sections 5.02, 5.03 or 5.04 which failure 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
Servicer by any party to this Servicing Agreement or by any master servicer
responsible for master servicing the Securitized Loans pursuant to a
securitization of such Securitized Loans.
7.
The
Sub-Servicer’s performance in accordance with the Sub-Servicing Acknowledgment
Agreement shall satisfy the Servicer’s obligations under the Servicing
Agreement, as amended hereby.
8. Except
as
amended herein, the terms and conditions and obligations of the Agreement
shall
remain in full force and effect.
9. This
Amendment may be executed in any counterparts, each of which shall be deemed
to
be an original and all of which counterparts shall together constitute but
one
and the same instrument.
10. This
Amendment becomes effective as of the date first written above.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf by the undersigned, thereunto duly authorized, as
of
the day and year first above written.
XXXXXXXXX
MORTGAGE HOME
LOANS,
INC., as Seller
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
XXXXXXXXX
MORTGAGE HOME
LOANS,
INC., as Servicer
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
XXXXX
FARGO BANK MINNESOTA,
NATIONAL
ASSOCIATION, as
Master
Servicer
By:
/s/
Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Vice President
SECOND
AMENDMENT TO
SERVICING
AGREEMENT
This
Second Amendment (“Amendment”) to the Servicing Agreement, dated
as
of March 1, 2002, by and between Xxxxx Fargo Bank, N.A., as Master Servicer
and
Xxxxxxxxx Mortgage Home Loans, Inc., as Seller and Servicer (“TMHL”), as amended
by that certain Amendment to Servicing Agreement dated as of December 1,
2002
(the “Servicing Agreement”), is made as of the 1st
day of
January, 2006, by and between the Master Servicer and TMHL.
W
I T N E
S S E T H:
WHEREAS,
TMHL and the Master Servicer are parties to the Servicing Agreement wherein
TMHL
has agreed to service Securitized Loans pursuant to the terms of the Servicing
Agreement, as amended;
WHEREAS,
the Master Servicer has requested that certain additional servicing
certifications, reports and attestations be provided to the Master Servicer
and
TMHL have agreed to such requirements;
WHEREAS,
the Master Servicer, TMHL and Cenlar FSB (“Cenlar”) have entered into a Second
Amendment to Subservicing Acknowledgement Agreement wherein Cenlar has agreed
to
comply with those additional requirements on behalf of TMHL;
WHEREAS,
the Master Servicer and TMHL desire to amend the Servicing Agreement to address
certain requirements not covered by the Subservicing Acknowledgement
Agreement.
NOW,
THEREFORE, for and in consideration of good and valuable considerations,
the
receipt and sufficiency of which are hereby acknowledged, and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Capitalized
terms used in this Amendment and not defined herein or amended by the terms
of
this Amendment shall have the meaning assigned to such terms in the Servicing
Agreement.
2. Article
I
entitled “Definitions” is amended to add the
following definitions thereto in their proper alphabetical order:
Commission:
The
United States Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
Xxxxx
Fargo Bank, N.A., its successor in interest, or such other Master Servicer
that
may be designated by TMHL, in writing from time to time.
Reconstitution:
Any
Securitization Transaction, Agency Transfer, Pass-Through Transfer or
Whole Loan
Transfer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
the
Commission, or as may be provided by the Commission or its staff from
time to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or
all of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or
privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer
Information:
As
defined in Section 5(a)(i)(A).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the
overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one
or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans as determined by and under the direction or authority
of TMHL or
a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of TMHL or any Subservicer
and is
responsible for the performance (whether directly or through Subservicers
or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by TMHL that are identified in Item 1122(d)
of
Regulation AB. Subservicer shall include Cenlar.
3. Notwithstanding
anything in this Amendment to the contrary, TMHL shall not hire or otherwise
utilize the services of any Subservicer to fulfill any of the obligations
of
TMHL as servicer unless TMHL complies with the provisions of this Amendment.
TMHL shall not hire or otherwise utilize the services of any Subcontractor,
and
shall not permit any Subservicer to hire or otherwise utilize the services
of
any Subcontractor, to fulfill any of the obligations of TMHL as servicer
under
this Amendment or any Reconstitution Agreement unless TMHL complies with
the
provisions of this Amendment.
(i) It
shall
not be necessary for TMHL to seek the consent of Master Servicer or any
Depositor to the utilization of any Subservicer. TMHL shall cause any
Subservicer used by TMHL (or by any Subservicer) to comply with the provisions
of this Amendment to the same extent as if such Subservicer were TMHL.
TMHL
shall be responsible for obtaining from each Subservicer and delivering
to
Master Servicer and any Depositor any servicer compliance statement required
to
be delivered by such Subservicer under Section 6, any assessment of compliance
and attestation required to be delivered by such Subservicer under Section
6 and
any back-up certification required to be delivered to the Person that
will be
responsible for signing the Sarbanes Certification under Section 6 as
and when
required to be delivered.
-2-
(ii) It
shall
not be necessary for TMHL to seek the consent of Master Servicer or any
Depositor to the utilization of any Subcontractor. TMHL shall promptly
upon
request provide to any Master Servicer and any Depositor (or any designee
of the
Depositor, such as a master servicer or administrator) a written description
of
(i) which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (ii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause
(i) of
this paragraph.
As
a
condition to the utilization of any Subcontractor determined by TMHL
to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, TMHL shall cause any such Subcontractor used by TMHL (or
by any
Subservicer) for the benefit of the Master Servicer and any Depositor
to comply
with the provisions of this Amendment to the same extent as if such
Subcontractor were TMHL. TMHL shall be responsible for obtaining from
each
Subcontractor and delivering to any Depositor any assessment of compliance
and
attestation and the other certifications required to be delivered by
such
Subcontractor under Section 6, in each case as and when required to be
delivered.
4. Additional
Representations and Warranties of TMHL.
(a) In
connection with any Securitization Transaction where TMHL is an originator
of
the related Mortgage Loans, TMHL shall be deemed to represent to Master
Servicer
and to any Depositor, as of the date on which information is first provided
to
any Master Servicer or any Depositor that, except as disclosed in writing
to
such Master Servicer or such Depositor prior to such date: (i) TMHL is
not aware
and has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization
due to
any act or failure to act of TMHL; (ii) TMHL has not been terminated
as servicer
in a residential mortgage loan securitization, either due to a servicing
default
or to application of a servicing performance test or trigger; (iii) no
material
noncompliance with the applicable servicing criteria with respect to
other
securitizations of residential mortgage loans involving TMHL as servicer
has
been disclosed or reported by TMHL; (iv) no material changes to TMHL’s policies
or procedures with respect to the servicing function it will perform
as
indicated on Exhibit 2 to this Amendment for mortgage loans of a type
similar to
the Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no aspects
of
TMHL’s financial condition that could have a material adverse effect on the
performance by TMHL of its servicing obligations under this Agreement
or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against TMHL or any
Subservicer; and (vii) there are no affiliations, relationships or transactions
relating to TMHL or any Subservicer with respect to any Securitization
Transaction and any party thereto identified by the related Depositor
of a type
described in Item 1119 of Regulation AB.
-3-
(b) In
connection with any Securitization Transaction and for the purpose of
satisfying
reporting obligations under the Exchange Act with respect to any class
of
asset-backed securities, TMHL shall (or shall cause each Subservicer
to) (i) as
promptly as practicable notify the Master Servicer and any Depositor
in writing
of (A) any material litigation or governmental proceedings pending against
TMHL
or any Subservicer, (B) any affiliations or relationships that develop
following
the closing date of a Securitization Transaction between TMHL or any
Subservicer
with respect to such Securitization Transaction, (C) any Event of Default
under
the terms of the Servicing Agreement or this Amendment, (D) any merger,
consolidation or sale of substantially all of the assets of TMHL and
(E) TMHL’s
entry into an agreement with a Subservicer (which Subservicer is determined
by
TMHL to be “participating in the servicing function” within the meaning of Item
1122 of Regulation AB) to perform or assist in the performance of any
of TMHL’s
obligations under the Servicing Agreement or this Amendment and (ii)
provide to
the Master Servicer and any Depositor a description of such proceedings,
affiliations or relationships.
(c) As
a
condition to the succession to TMHL or any Subservicer as servicer or
subservicer under the Servicing Agreement by any Person (i) into which
TMHL or
such Subservicer may be merged or consolidated, or (ii) which may be
appointed
as a successor to TMHL or any Subservicer, TMHL shall provide to any
Depositor,
at least 15 calendar days prior to the effective date of such succession
or
appointment, (x) written notice to the Master Servicer and any Depositor
of such
succession or appointment and (y) all information (in form and substance
which
is compliant with Regulation AB and subject to the good faith negotiations
of
the parties hereto) reasonably requested by Master Servicer or any Depositor
and
agreed to by TMHL in order to comply with the reporting obligation under
Item
6.02 of Form 8-K with respect to any class of asset-backed
securities.
(d) In
addition to such information as TMHL, as servicer, is obligated to provide
pursuant to other provisions of this Amendment, not later than ten (10)
days
prior to the deadline for the filing of any distribution report on Form
10-D in
respect of any Securitization Transaction that includes any of the Mortgage
Loans serviced by TMHL
or any
Subservicer, TMHL
or such
Subservicer, as applicable, shall, to the extent TMHL
or such
Subservicer has knowledge, provide to the party responsible for filing
such
report (including, if applicable, the Master Servicer) notice of the
occurrence
of any of the following events along with all information, data and materials
related thereto as may be required to be included in the related distribution
report on Form 10-D (as specified in the provision of Regulation AB reference
below):
(i) any
material modifications, extensions or waivers of the terms, fees, penalties
or
payments of Mortgage Loans serviced pursuant to a Securitization Transaction
during the distribution period or that have cumulatively become material
over
time (Item 1121(a)(11) of Regulation AB);
-4-
(ii) material
breaches of representations or warranties or transaction covenants relating
to
Mortgage Loans serviced pursuant to a Securitization Transaction (Item
1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same Mortgage
Loans serviced pursuant to a Securitization Transaction, any changes
to Mortgage
Loans serviced pursuant to a Securitization Transaction (such as additions,
substitutions or repurchases) and any material changes in origination,
underwriting or other criteria for acquisition or selection of Mortgage
Loans
serviced pursuant to a Securitization Transaction (Item 1121(a)(14) of
Regulation AB).
(e) TMHL
shall provide to the Master Servicer and any Depositor, evidence of the
authorization of the person signing any certification or statement and
evidence
of Fidelity Bond Insurance and Errors and Omission Insurance policy.
TMHL shall
also provide to the Master Servicer and any Depositor, financial information
and
reports, and such other information related to TMHL or any Subservicer
or TMHL’s
or Subservicer’s performance hereunder and which information is available to
TMHL and necessary for compliance with Regulation AB.]
5. Indemnification;
Remedies.
(a) TMHL
shall indemnify the Master Servicer and any Depositor and the respective
present
and former directors, officers, employees and agents of each of the foregoing,
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may
sustain
solely and directly arising out of or based upon:
(i) (A) any
untrue statement of a material fact contained in any
information, report, certification, accountants’ letter or other
material
provided in written or electronic form under
this Amendment, by
or on behalf of TMHL,
or
provided under any of Sections of this Amendment, as applicable, by or
on behalf
of any Subservicer or Subcontractor (collectively, the “Servicer
Information”),
or (B) the omission to state in Servicer Information a material fact
required to
be stated in Servicer Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not
misleading; provided,
by way of clarification,
that clause (B) of this paragraph shall be construed solely by reference
to
Servicer Information and not to any other information communicated in
connection
with a sale or purchase of securities, without regard to whether Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
breach by TMHL of its obligations under this Amendment, including particularly
any failure by TMHL, any Subservicer or any Subcontractor
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Amendment, as applicable, including
any
failure by TMHL to identify pursuant to Section 3 any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB; or
(iii) any
breach by TMHL of a representation or warranty set forth in Section 4(a)
or in a
writing furnished
pursuant
to Section 4(b) and made as of a date prior to the closing date of the
related
Securitization Transaction, to the extent that such breach is not cured
by such
closing date, or any breach by TMHL of a representation or warranty in
a writing
furnished pursuant to Section 4(b) to the extent made as of a date subsequent
to
such closing date; or
-5-
(iv) the
gross negligence of TMHL in connection with its performance under this
Amendment.
If
the
indemnification provided for herein is unavailable or insufficient to
hold
harmless an indemnified party, then TMHL agrees that it shall contribute
to the
amount paid or payable by such indemnified party in such proportion as
is
appropriate to reflect the relative fault of such indemnified party on
the one
hand and TMHL on the other.
In
the case of any failure of performance described in clause (a)(ii) of
this
Section, TMHL shall promptly reimburse the Master Servicer, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction, for all costs reasonably incurred
by each
such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by TMHL, any
Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Amendment or the
termination of any party to this Amendment.
(b) (i) Any
failure by TMHL, any Subservicer or any Subcontractor
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Amendment, as applicable, or
any breach
by TMHL of a representation or warranty set
forth in
Section 4(a) or in a writing furnished pursuant to Section 4(b) and made
as of a
date prior to the closing date of the related Securitization Transaction,
to the
extent that such breach is not cured by such closing date, or any breach
by TMHL
of a representation or warranty in a writing furnished pursuant to Section
4(b)
to the extent made as of a date subsequent to such closing date, which
failure
or breach continues unremedied for a period of ten (10) calendar days
after the
date on which written notice of such failure, requiring the same to have
been
remedied, shall have been given to TMHL by the Master Servicer or Depositor,
shall constitute an Event of Default with respect to TMHL under this
Amendment,
and shall entitle the Master Servicer or Depositor, as applicable, in
its sole
discretion to terminate the rights and obligations of TMHL as servicer
under
this Amendment pursuant to this Amendment; provided
that to
the extent that any provision of this Amendment expressly provides for
the
survival of certain rights or obligations following termination of TMHL
as
servicer, such provision shall be given effect.
(ii) Any
failure by TMHL, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 6, including (except as provided below) any
failure by
TMHL to identify pursuant to Section 3 any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
failure continues unremedied for a period of ten (10) calendar days after
the
date on which written notice of such failure, requiring the same to have
been
remedied, shall have been given to TMHL by the Master Servicer or Depositor,
shall constitute an Event of Default with respect to TMHL under this
Amendment,
and shall entitle the Purchaser, Master Servicer or Depositor, as applicable,
in
its sole discretion to terminate the rights and obligations of TMHL as
servicer
pursuant to the terms of this Amendment; provided
that to
the extent that any provision of this Amendment expressly provides for
the
survival of certain rights or obligations following termination of TMHL
as
servicer, such provision shall be given effect.
-6-
Neither
the Master Servicer nor any Depositor shall be entitled to terminate
the rights
and obligations of TMHL pursuant to this subparagraph (b)(ii) if a failure
of
TMHL to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely
to the
role or functions of such Subcontractor with respect to mortgage loans
other
than the Mortgage Loans.
6. Annual
Statement as to Compliance.
(i) On
or
before March 1 of each calendar year, commencing in 2007, TMHL shall
deliver to
the Master Servicer and any Depositor a statement of compliance addressed
to
such Master Servicer and such Depositor and signed by an authorized officer
of
TMHL, to the effect that (i) a review of TMHL’s activities during the
immediately preceding calendar year (or applicable portion thereof) and
of its
performance under this Amendment during such period has been made under
such
officer’s supervision, and (ii) to the best of such officers’ knowledge, based
on such review, TMHL has fulfilled all of its obligations under this
Amendment
in all material respects throughout such calendar year (or applicable
portion
thereof) or, if there has been a failure to fulfill any such obligation
in any
material respect, specifically identifying each such failure known to
such
officer and the nature and the status thereof.
(ii) On
or
before March 1 of each calendar year, commencing in 2007, TMHL
shall:
(A) deliver
to the Master Servicer and any Depositor a report regarding TMHL’s assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and
Item
1122 of Regulation AB. Such report shall be addressed to such Master
Servicer
and such Depositor and signed by an authorized officer of TMHL, and shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 2 hereto delivered to the Master
Servicer
concurrently with the execution of this Amendment;
(B) deliver
to the Master Servicer and any Depositor a report of a registered public
accounting firm that attests to, and reports on, the assessment of compliance
made by TMHL and delivered pursuant to the preceding paragraph. Such
attestation
shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation
S-X under
the Securities Act and the Exchange Act;
(C) cause
each Subservicer, and each Subcontractor determined by TMHL pursuant
to Section
2.01(b)(ii) to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Master Servicer and
any
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (ii) and (iii) of this Section; and
-7-
(D) deliver
(and cause each Subservicer and Subcontractor described in clause (C)
above to
deliver) to the Depositor, the Master Servicer and any other Person that
will be
responsible for signing the certification (a “Sarbanes Certification”) required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302
of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer
with
respect to a Securitization Transaction a back-up certification signed
by the
appropriate officer of TMHL, in the form attached hereto as Exhibit
1.
TMHL
acknowledges that the parties identified in clause (ii)(D) above may
rely on the
certification provided by TMHL pursuant to such clause in signing a Sarbanes
Certification and filing such with the Commission. The Master Servicer
or
Depositor will not request delivery of a certification under clause (ii)(D)
above unless a Depositor is required under the Exchange Act to file an
annual
report on Form 10-K with respect to an issuing entity whose asset pool
includes
Mortgage Loans.
(iii) Each
assessment of compliance provided by a Subservicer pursuant to this Section
6
shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 2 hereto delivered to the Master
Servicer
concurrently with the execution of this Amendment or, in the case of
a
Subservicer subsequently appointed as such, on or prior to the date of
such
appointment. An assessment of compliance provided by a Subcontractor
pursuant to
this Section 6 need not address any elements of the Servicing Criteria
other
than those specified by TMHL pursuant to Section 3.
7. (iv) It
is
acknowledged and agreed that each Master Servicer and the Sarbanes Certifying
Party shall be an express third party beneficiary of the provisions of
this
Section 6, and shall be entitled independently to enforce the provisions
of this
Section 6 with respect to any obligations owed to such entity as if it
were a
direct party to this Agreement.
8. Counterparts.
This
Amendment may be executed in two or more counterparts (and by different
parties
on separate counterparts), each of which shall be an original, but all
of which
together shall constitute one and the same instrument.
9. Headings.
The
headings herein are for purposes of reference only and shall not otherwise
affect the meaning or interpretation or any provision hereof.
10. Agreement
in Full Force and Effect as Amended.
Except
as specifically amended or waived hereby, all of the terms and conditions
of the
Servicing Agreement shall remain in full force and effect. All references
to the
Servicing Agreement in any other document or instrument shall be deemed
to mean
such Servicing Agreement as amended by this Amendment. This Amendment
shall not
constitute a novation of the Servicing Agreement, but shall constitute
an
amendment thereof. The parties hereto agree to be bound by the terms
and
obligations of the Servicing Agreement, as amended by this Amendment,
as though
the terms and obligations of the Servicing Agreement were set forth
herein.
-8-
11. Governing
Law.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PROVISIONS.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
-9-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly
executed by their respective officers as of the day and year first above
written.
XXXXX
FARGO BANK, N.A.,
(Master
Servicer)
By:
/s/ Xxx
Xxxxx
Name:
Xxx
Xxxxx
Title:
Vice President
XXXXXXXXX
MORTGAGE HOME LOANS, INC.
(Servicer)
By:
/s/ Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President
-10-
EXHIBIT
1
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Servicing Agreement, dated as of March 1, 2002, as amended
(the
“Agreement”), between Xxxxxxxxx Mortgage Home Loans, Inc., as servicer,
and Xxxxx Fargo Bank, N.A., as master
servicer.
|
TMHL
certifies to the Depositor and the Master Servicer, and their officers,
with the
knowledge and intent that they will rely upon this certification,
that:
(1) TMHL
has
reviewed Servicer compliance statement provided in accordance with Item
1123 of
Regulation AB (the “Compliance Statement”), the report on assessment of
Servicer’s compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the “Servicing Criteria”), provided in accordance with Rules
13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”), the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b)
of
Regulation AB (the “Attestation Report”), and all servicing reports, officer’s
certificates and other information relating to the servicing of the Mortgage
Loans by TMHL during 200[ ] that were delivered by TMHL to the Depositor
and
Master Servicer pursuant to the Agreement (collectively, the “Servicer Servicing
Information”);
(2) Based
on
TMHL’s knowledge, TMHL Servicing Information, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by Servicer Servicing Information;
(3) Based
on
TMHL’s knowledge, all of TMHL Servicing Information required to be provided
by
TMHL under the Agreement has been provided to the Depositor and Master
Servicer;
(4) Based
upon TMHL’s knowledge and the compliance review conducted in preparing the
Compliance Statement and except as disclosed in the Compliance Statement,
the
Servicing Assessment or the Attestation Report, TMHL has fulfilled its
obligations under the Agreement in all material respects; and
1-1
(5) The
Compliance Statement required to be delivered by TMHL pursuant to the
Agreement,
and the Servicing Assessment and Attestation Report required to be provided
by
TMHL and by any Subservicer or Subcontractor pursuant to the Agreement,
have
been provided to the Depositor and Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Depositor
and
Master Servicer. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
________________________
By:___________________________
Name:
Title:
1-2
EXHIBIT
2
SERVICING
CRITERIA
[need
to check boxes Xxxxxxxxx is responsible for on a separate
form]
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance
or other triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third
parties,
policies and procedures are instituted to monitor the third
party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a
back-up servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect
on the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than
two business days
following receipt, or such other number of days specified
in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows
or distributions,
and any interest or other fees charged for such advances,
are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve
accounts or
accounts established as a form of overcollateralization,
are separately
maintained (e.g., with respect to commingling of cash) as
set forth in the
transaction agreements.
|
|
2-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial
institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement
cutoff date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who
prepared the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of
their original
identification, or such other number of days specified in
the transaction
agreements.
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements
and applicable
Commission requirements. Specifically, such reports (A) are
prepared in
accordance with timeframes and other terms set forth in the
transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and
(D) agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by TMHL.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance
with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to
TMHL’s investor
records, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with
cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
2-2
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by
the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by
the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are
made, reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to TMHL’s obligor records
maintained no more than two business days after receipt,
or such other
number of days specified in the transaction agreements, and
allocated to
principal, interest or other items (e.g., escrow) in accordance
with the
related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
TMHL’s
records regarding the mortgage loans agree with TMHL’s records with
respect to an obligor’s unpaid principal balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans,
modifications and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the
period a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such
other period
specified in the transaction agreements, and describe the
entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
2-3
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is
paid, or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned
to the obligor
within 30 calendar days of full repayment of the related
mortgage loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as
indicated on the
appropriate bills or notices for such payments, provided
that such support
has been received by TMHL at least 30 calendar days prior
to these dates,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to
be made on behalf
of an obligor are paid from TMHL’s funds and not charged to the obligor,
unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business
days to the
obligor’s records maintained by TMHL, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and
recorded in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item
1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained
as set forth in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF
COMPANY]
[NAME
OF
SUBSERVICER]
Date:________________________
By:__________________________
Name:________________________
Title:_________________________
2-4
EXECUTION
SUB-SERVICING
ACKNOWLEDGEMENT AGREEMENT
THIS
SUB-SERVICING ACKNOWLEDGEMENT AGREEMENT, dated as of March 1, 2002 (the
“Agreement”), is between XXXXXXXXX
MORTGAGE HOME LOANS, INC.,
a
Delaware corporation (“TMHL”) as servicer (“the Servicer”) and CENLAR FSB, a
federal savings bank (“Cenlar”), as sub-servicer (the
“Sub-Servicer”):
W
I T N E
S S E T H:
WHEREAS,
Cenlar is sub-servicing certain residential mortgage loans (the “Mortgage
Loans”) for the Servicer under that certain Subservicing Agreement, dated as of
February 22, 2000 (the “Subservicing Agreement”), between Xxxxxxxxx Mortgage,
Inc.
(“TMI”) and Cenlar;
WHEREAS,
the Subservicing Agreement was amended by that certain Amendment to Subservicing
Agreement, dated as of October 31, 2000 (the “Amendment”), among TMI, Cenlar and
TMHL;
WHEREAS,
the Subservicing Agreement and the Amendment thereto shall hereinafter
collectively be referred to as the “Superseded Sub-Servicing
Agreement;”
WHEREAS,
TMI no longer owns an interest in the Mortgage Loans, including the servicing
rights in connection therewith, all such ownership now being vested in TMHL;
WHEREAS,
TMHL has entered into that certain Servicing Agreement for the servicing
of the
Mortgage Loans dated as of March 1, 2002 (the “Servicing Agreement”) by and
among Xxxxx Fargo Bank Minnesota, National Association, as master servicer
(the
“Master Servicer”), the Servicer and TMHL, as the seller (the “Seller”), which
Servicing Agreement is attached as Exhibit A hereto;
WHEREAS,
TMHL from time to time may convey certain of the Mortgage Loans, on a
servicing-retained basis, to one or more Trusts, as defined in the Servicing
Agreement, under one or more Trust Agreements, as defined in the Servicing
Agreement, in connection with a Pass-Through Transfer, as defined in the
Servicing Agreement;
WHEREAS,
upon the Effective Date, as defined in the Servicing Agreement, of any such
Pass-Through Transfer, the Mortgage Loans to which the Pass-Through Transfer
relates shall become Securitized Loans, as defined in the Servicing
Agreement;
WHEREAS,
Section 7.04 of the Servicing Agreement permits the Servicer to enter into
sub-servicing agreements on the terms and conditions stated
therein;
WHEREAS,
each of the Seller, the Sub-Servicer and the Servicer desires that the
Sub-Servicer sub-service the Securitized Loans for the benefit of the Servicer,
but pursuant to the terms and conditions of the Servicing Agreement and this
Agreement, rather than the terms and conditions of the Superseded Sub-Servicing
Agreement, which is hereby superseded in its entirety;
NOW
THEREFORE, for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as
follows:
1. Sub-Servicer’s
Agreement to Sub-Service.
The
Sub-Servicer hereby agrees to sub-service the Securitized Loans pursuant
to the
terms and conditions of the Servicing Agreement and this Agreement for the
benefit of the Servicer.
2. Sub-Servicer
and Servicer Obligations.
The
parties agree that, with respect to the Securitized Loans, all obligations
to,
agreements with and rights of the Servicer in the Servicing Agreement, other
than those set forth in Section 7.04, shall mean obligations to, agreements
with
and rights of the Sub-Servicer, and all obligations to, agreements with and
rights of the Master Servicer in the Servicing Agreement shall mean obligations
to, agreements with and rights of the Servicer.
3. Servicer’s
Liability.
The
Servicer acknowledges that, paragraph 2 above notwithstanding, the Servicer
remains obligated and primarily liable to the Trustee, the Master Servicer
and
the Certificateholders for the servicing and administration of the Securitized
Loans in accordance with Section 7.04 of the Servicing Agreement.
4. Successor
to Servicer.
If the
Servicer is terminated or resigns under the terms of the Servicing Agreement,
a
successor servicer shall be entitled to terminate this Agreement without
the
payment of any fees or expenses, provided,
however,
that
this shall not limit the recourse of the Sub-Servicer against the Servicer
for
the payment of any termination fees or expenses under any sub-servicing
agreement.
5. Capitalized
Terms.
Capitalized terms used and not defined in this Agreement shall have the meanings
assigned to such terms in the Servicing Agreement, and if not defined therein,
with respect to Securitized Loans, in the related Trust Agreement.
6. Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart hereof
is
received by each party hereto and shall be deemed to have been made in the
State
of New York. 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 THE LAWS
OF THE
STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES
TO THE
CONTRARY.
7. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which counterparts shall together
constitute but one and the same instrument.
-2-
8. Effectiveness.
This
Agreement shall become effective as of the date first written
above.
-3-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf by the undersigned, thereunto duly authorized, as
of
the day and year first above written.
XXXXXXXXX
MORTGAGE HOME LOANS, INC.
By:
/s/
Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CENLAR
FSB
By:
/s/
Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
-4-
EXHIBIT
A
SERVICING
AGREEMENT
[Attached]
AMENDMENT
TO SUB-SERVICING
ACKNOWLEDGMENT
AGREEMENT
This
AMENDMENT to the Sub-servicing Acknowledgment Agreement dated as of March
1,
2002, between XXXXXXXXX MORTGAGE HOME LOANS, INC. (“TMHL”) (the “Servicer”) and
CENLAR FSB, a federal savings bank (“Cenlar (the “Acknowledgment Agreement”) is
made as of the 1st day of December, 2002 by and between CENLAR, the SERVICER
(the “Amendment”) “) and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
Master Servicer (“Master Servicer”).
WITNESSETH:
WHEREAS,
Cenlar and the Servicer are parties to the Acknowledgment Agreement, wherein
Cenlar has agreed to sub-service certain Securitized Loans for the benefit
of
the Servicer pursuant to the terms of the Acknowledgment Agreement and that
certain Servicing Agreement, as hereinafter defined;
WHEREAS,
simultaneously herewith, an Amendment to the Servicing Agreement is being
entered into by the parties to the Servicing Agreement to delete certain
servicing requirements;
WHEREAS,
the Servicer and Cenlar desire to amend the Acknowledgment Agreement to
incorporate the Amendment to the Servicing Agreement into the Acknowledgment
Agreement; and
WHEREAS,
Cenlar, the Servicer and the Master Servicer have agreed that Cenlar will
provide certain reports and certifications with respect to the Securitized
Loans
directly to the Master Servicer.
NOW,
THEREFORE, for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as
follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Acknowledgement Agreement.
2. The
fifth
recital is deleted and replaced with the following:
WHEREAS,
TMHL has entered into that certain Servicing Agreement for the servicing
of
Mortgage Loans dated as of March 1, 2002, as amended by that certain Amendment
to Servicing Agreement dated as of December 1, 2002 (the “Servicing Agreement”),
each by and among Xxxxx Fargo Bank Minnesota, National Association, as master
servicer (the “Master Servicer”), the Servicer and TMHL, as the seller (the
“Seller”), which Servicing Agreement is attached hereto as Exhibit
A.
3. Cenlar
shall, at its own expense, use its best efforts by March 20 of each year,
but in
no event later than March 30 of each year, cause a firm of independent public
accountants (who may also render other services to Cenlar), which is a member
of
the American Institute of Certified Public Accountants, to furnish to the
Seller, the Servicer and the Master Servicer (i) year-end audited (if available)
financial statements of Cenlar and (ii) a statement to the effect that such
firm
has examined certain documents and records for the preceding fiscal year
(or
during the period from the date of commencement of Cenlar’s duties hereunder
until the end of such preceding fiscal year in the case of the first such
certificate) and that, on the basis of such examination conducted substantially
in compliance with the Uniform Single Attestation Program for Mortgage Bankers,
such firm is of the opinion that Cenlar’s overall servicing operations have been
conducted in compliance with the Uniform Single Attestation Program for Mortgage
Bankers except for such exceptions that, in the opinion of such firm, the
Uniform Single Attestation Program for Mortgage Bankers requires it to report,
in which case such exceptions shall be set forth in such statement.
4. Cenlar
will, at its own expense, use its best efforts by March 20 of each year,
but in
no event later than March 30 of each year, deliver to the Seller, the Servicer
and the Master Servicer an Officer’s Certificate stating, as to each signer
thereof, that (i) a review of the activities of Cenlar during such preceding
fiscal year and of performance under this Agreement has been made under such
officers’ supervision, and (ii) to the best of such officers’ knowledge, based
on such review, Cenlar has fulfilled all its obligations under this Agreement
for such year, or, if there has been a default in the fulfillment of all
such
obligations, specifying each such default known to such officers and the
nature
and status thereof including the steps being taken by Cenlar to remedy such
default.
5. a. An
officer of Cenlar shall, using its best efforts by March 20 of each year,
but no
later than March 30 of each year, (or if not a Business Day, the immediately
preceding Business Day), or at any other time upon thirty (30) days written
request, an officer of Cenlar shall execute and deliver an Officer’s Certificate
to the Master Servicer for the benefit of such Master Servicer and its officers,
directors and affiliates, certifying as to the following matters:
(i) Based
on
my knowledge, the information in the annual statement of compliance furnished
pursuant to Section 4, the annual independent public accountant’s servicing
report furnished pursuant to Section 3 and all servicing reports, officer’s
certificates and other information relating to the servicing of the Securitized
Loans submitted to the Servicer and 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;
(ii) The
servicing information required to be provided to the Master Servicer and
the
Servicer by Cenlar under the Servicing Agreement and Sub-Servicing
Acknowledgment Agreement has been provided to the Servicer and the Master
Servicer;
(iii)
I am
responsible for reviewing the activities performed by Cenlar under the Servicing
Agreement and Sub-Servicing Acknowledgment Agreement and based upon the review
required by the Servicing Agreement and Sub-Servicing Acknowledgment 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
Securitized Loans submitted to the Master Servicer and the Servicer, Cenlar
has,
as of the date of this certification fulfilled its obligations under the
Servicing Agreement and the Sub-Servicing Acknowledgment Agreement; and
(iv) I
have
disclosed to the Master Servicer and the Servicer all significant deficiencies
relating to Cenlar’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
Servicing Agreement.
b. Cenlar
shall indemnify and hold harmless the Master Servicer and the Servicer and
their
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
Cenlar or any of its officers, directors, agents or affiliates of its
obligations under this Section 5 or the negligence, bad faith or willful
misconduct of Cenlar in connection therewith. If the indemnification provided
for herein is unavailable or insufficient to hold harmless the Master Servicer
or Servicer, then Cenlar agrees that it shall contribute to the amount paid
or
payable by the Master Servicer or the Servicer as a result of losses, claims,
damages or liabilities of the Master Servicer and the Servicer in such
proportion as is appropriate to reflect the relative fault of the Master
Servicer or Servicer on the one hand and Cenlar on the other in connection
with
a breach of Cenlar’s obligations under this Section 5 or Cenlar’s negligence,
bad faith or willful misconduct in connection therewith.
6. In
addition to the events of default set forth in Section 8.01 of the Servicing
Agreement, the failure by Cenlar to duly perform, within the required time
period, its obligations under Sections 3, 4 or 5 which failure 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 Cenlar by any party to this Sub-Servicing Acknowledgment Agreement or
by any
master servicer responsible for master servicing the Securitized Loans pursuant
to a securitization of such Securitized Loans, shall also be an event of
default.
7. The
remedies set forth in Section 8.01 of the Servicing Agreement shall be available
to the Master Servicer and the Servicer with respect to an event of default
by
Cenlar pursuant to Section 6 hereof.
8. Except
as
amended herein, the terms and conditions and obligations of the Agreement
shall
remain in full force and effect.
9. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but one
and
the same instrument.
10. This
Amendment becomes effective as of the date first written above.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf by the undersigned, thereunto duly authorized, as
of
the day and year first above written.
XXXXXXXXX
MORTGAGE HOME
LOANS,
INC., as Seller
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Vice President
CENLAR
FSB
By:
/s/
Xxxxx X. Xxxxxx, Xx.
Name:
Xxxxx X. Xxxxxx, Xx.
Title:
Senior Vice President
XXXXX
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
Master
Servicer
By:
/s/
Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Vice President
SECOND
AMENDMENT TO SUBSERVICING ACKNOWLEDGMENT AGREEMENT
This
Second Amendment to the Subservicing Acknowledgment Agreement dated as of
March
1, 2002, as amended by that certain Amendment to Subservicing Acknowledgment
Agreement dated as of December 1, 2002, between Cenlar FSB (“Subservicer”) and
Xxxxxxxxx Mortgage Home Loans, Inc., a Delaware corporation (“TMHL”) (the
“Agreement”) is made as of the 1st day of January, 2006, by and between the
Subservicer, TMHL, and Xxxxx Fargo Bank, NA, as Master Servicer (“Master
Servicer”).
PRELIMINARY
STATEMENT
WHEREAS,
TMHL, the Subservicer and the Master Servicer are parties to the Agreement,
wherein the Subservicer has agreed to subservice the Securitized
Loans;
WHEREAS,
TMHL, the Subservicer and the Master Servicer desire to amend the Agreement
to
address the requirements of Regulation AB (as defined herein).
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, TMHL, the Subservicer and the Master Servicer
agree as follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Agreement.
2. Definitions:
The
following terms are defined as follows:
Attestation
Report:
As
defined in Section 3.5(a)(ii) and Exhibit II(1).
Commission:
The
United States Securities and Exchange Commission.
Compliance
Statement:
As
defined in Section 3.4 and Exhibit II(1).
Depositor:
With
respect to any Securitization Transaction, the entity that purchases Securitized
Loans from TMHL and sells the Securitized Loans to the issuer of mortgage-backed
securities.
Distribution
Report:
The
reports on Form 10-D required to be filed by asset-backed issuers with the
Commission pursuant to the Exchange Act and the rules promulgated
thereunder.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
Xxxxx
Fargo Bank, N.A. or any successor appointed by TMHL or any Trustee.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
Sarbanes
Certification:
As defined in Section 3.5(a)(iii), the form of which is attached hereto as
Exhibit II.
Securities
Act:
The Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Securitized Loans directly or indirectly to an issuing entity in connection
with
an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Securitized
Loans.
Servicing
Assessment:
As
defined in Section 3.5(a)(i) and Exhibit II(1).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Subcontractor:
Any
vendor, subcontractor or other person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Securitized Loans but performs one
or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Securitized Loans under the direction or authority of Subservicer.
Subservicer
Information:
As
defined in Section 3.7(a)(i).
3. Section
3. Regulation AB Requirements/Compliance.
Section
3.1. Intent
of the Parties; Reasonableness.
The
purpose of this Section 3 is to facilitate compliance by TMHL, the Master
Servicer and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Neither TMHL, the Master Servicer
nor
any Depositor shall exercise its right to request delivery of information
or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act
and the
rules and regulations of the Commission thereunder. The Subservicer acknowledges
that interpretations of the requirements of Regulation AB may change over
time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made by TMHL, the
Master Servicer or any Depositor in good faith for delivery of information
under
these provisions on the basis of evolving interpretations of Regulation AB.
Therefore, the Subservicer agrees that (a) the obligations of the Subservicer
hereunder shall be interpreted in such a manner as to accomplish that purpose,
(b) the Subservicer’s obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice
or
guidance, convention or consensus among active participants in the asset-backed
markets, advice of counsel, or otherwise in respect of the requirements of
Regulation AB, (c) the Subservicer shall comply with requests made by TMHL,
the Master Servicer or any Depositor for delivery of additional or different
information as TMHL, the Master Servicer or the Depositor may determine in
good
faith is necessary to comply with Regulation AB, and (d) no amendment of
the
Agreement shall be required to effect such changes in the Subservicer’s
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB. In connection
with any Securitization Transaction, the Subservicer shall cooperate fully
with
TMHL to deliver to TMHL (including any of its assignees or designees), the
Master Servicer and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of TMHL, the Master Servicer or any Depositor to permit TMHL,
the
Master Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Subservicer or the servicing
of Securitized Loans reasonably believed by TMHL, the Master Servicer or
any
Depositor to be necessary in order to effect such compliance.
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Section
3.2. Additional
Representations and Warranties of Subservicer.
(a) The
Subservicer represents to TMHL, the Master Servicer and to any Depositor,
as of
the date on which information is first provided to TMHL, the Master Servicer
or
any Depositor under Section 3.3 that, except as disclosed in writing to TMHL,
the Master Servicer or such Depositor prior to such date: (i)
the Subservicer is not aware and has not received notice that any default,
early
amortization or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Subservicer; (ii)
the
Subservicer
has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Subservicer as servicer has
been disclosed or reported by the Subservicer; (iv) no material
changes to the Subservicer’s policies or procedures with respect to the
servicing function it will perform under the Agreement for mortgage loans
of a
type similar to the Securitized Loans
have occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Subservicer’s
financial condition that could have a material adverse effect on the performance
by the Subservicer
of its servicing obligations under the Agreement;
(vi) the Subservicer does not utilize any subservicers; (vii) the Subservicer
does not utilize any Subcontractors except for those identified in writing
to
TMHL pursuant to Section 3.6; (viii) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Subservicer;
and (ix) there are no affiliations, relationships or transactions relating
to
the Subservicer with respect to any Securitization Transaction and any party
thereto identified by the related Depositor of a type described in Item 1119
of
Regulation AB.
When
used herein, the term “servicing” shall also mean “subservicing.”
(b) If
so
requested by TMHL, the Master Servicer or any Depositor on any date following
the date on which information is first provided to TMHL, the Master Servicer
or
any Depositor under Section 3.3, the Subservicer shall, within five Business
Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section
3.2
or, if any such representation and warranty is not accurate as of the date
of
such request, provide reasonably adequate disclosure of the pertinent facts,
in
writing, to the requesting party.
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Section
3.3. Information
to be Provided by the Subservicer.
In
connection with any Securitization Transaction the Subservicer shall (i)
within
five Business Days following request by TMHL, [the Master Servicer] or any
Depositor, provide to TMHL, the Master Servicer and such Depositor, in writing
and in form and substance reasonably satisfactory to TMHL, [the Master Servicer]
and such Depositor, the information and materials specified in paragraphs
(a),
(b) and (f) of this Section 3.3, and (ii) as promptly as practicable following
notice to or discovery by the Subservicer, provide to TMHL, the Master Servicer
and any Depositor (in writing and in form and substance reasonably satisfactory
to TMHL, the Master Servicer and such Depositor) the information specified
in
paragraphs (d), (e) and (f) of this Section 3.3.
(a) If
so
requested by TMHL, the Master Servicer or any Depositor, the Subservicer
shall
provide such information regarding the Subservicer as is requested for the
purpose of compliance with Item 1108 of Regulation AB. Such information shall
include, at a minimum:
(i) the
Subservicer’s form of organization;
(ii) a
description of how long Subservicer has been servicing residential mortgage
loans; a general discussion of the Subservicer’s experience in servicing assets
of any type as well as a more detailed discussion of the Subservicer’s
experience in, and procedures for, the servicing function it performs under
the
Agreement; information regarding the size, composition and growth of the
Subservicer’s portfolio of residential mortgage loans of a type similar to the
Securitized Loans and information on factors related to the Subservicer that
may
be material, in the good faith judgment of TMHL, the Master Servicer or any
Depositor, to any analysis of the servicing of the Securitized Loans or the
related asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Securitized
Loans involving the Subservicer have defaulted or experienced an early
amortization or other performance triggering event because of servicing during
the three-year period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Subservicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Subservicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Subservicer has been terminated as servicer or subservicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; and
(5) such
other information as TMHL, [the Master Servicer] or any Depositor may reasonably
request for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
(iii) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Subservicer’s policies
or procedures with respect to the servicing function it will perform under
the
Agreement for mortgage loans of a type similar to the Securitized
Loans;
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(iv) information
regarding the Subservicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Subservicer could have a material adverse effect on the performance by the
Subservicer of its servicing obligations under the Agreement;
(v) information
regarding advances made by the Subservicer on the Securitized Loans and the
Subservicer’s overall servicing portfolio of residential mortgage loans for the
three-year period immediately preceding the related Securitization Transaction,
which may be limited to a statement by an authorized officer of the Subservicer
to the effect that the Subservicer has made all advances required to be made
on
residential mortgage loans serviced by it during such period, or, if such
statement would not be accurate, information regarding the percentage and
type
of advances not made as required, and the reasons for such failure to
advance;
(vi) a
description of the Subservicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of a similar type
as
the Securitized Loans;
(vii) a
description of the Subservicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(viii) information
as to how the Subservicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(b) If
so
requested by TMHL, the Master Servicer or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to
any
class of asset-backed securities, the Subservicer shall (i) notify TMHL,
the
Master Servicer and any Depositor in writing of (A) any material litigation
or
governmental proceedings pending against the Subservicer and (B) any
affiliations or relationships that develop following the closing date of
a
Securitization Transaction between the Subservicer and any of the following
parties
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer and master servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
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(and
any
other parties identified in writing by the requesting party) with respect
to
such Securitization Transaction, and (ii) provide to TMHL, the Master Servicer
and any Depositor a description of such proceedings, affiliations or
relationships.
(c) As
a
condition to the succession to the Subservicer under the Agreement by any
Person
(i) into which the Subservicer may be merged or consolidated, or (ii) which
may
be appointed as a successor to the Subservicer, the Subservicer shall provide
to
TMHL, [the Master Servicer] and any Depositor at least 15 calendar days prior
to
the effective date of such succession or appointment, (x) written notice
to
TMHL, the Master Servicer and any Depositor of such succession or appointment
and (y) in writing and in form and substance reasonably satisfactory to TMHL,
[the Master Servicer] and such Depositor, all information reasonably requested
by TMHL, [the Master Servicer] or any Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities.
(d) In
addition to such information as the Subservicer is obligated to provide pursuant
to other provisions of the Agreement, if so requested by TMHL, the Master
Servicer or any Depositor, the Subservicer shall provide such information
reasonably available to the Subservicer regarding the performance or servicing
of the Securitized Loans as is reasonably required to facilitate preparation
of
Distribution Reports in accordance with Item 1121 of Regulation AB.
(e) The
Subservicer shall provide to the Master Servicer prompt notice of the occurrence
of any of the following: any event of default under the terms of this Agreement,
any merger, consolidation or sale of substantially all of the assets of the
Subservicer, the Subservicer’s engagement of any subcontractor or vendor to
perform or assist in the performance of any of the Subservicer’s obligations
under this Agreement, any material litigation involving the Subservicer,
and any
affiliation or other significant relationship between the Subservicer and
other
transaction parties.
(f) The
Subservicer shall provide to the Master Servicer such additional information
as
the Master Servicer may reasonably request, including evidence of the
authorization of the person signing any certification or statement, and of
the
fidelity bond and errors and omissions insurance policy required to be
maintained by the Subservicer, financial information and reports, and such
other
information related to the Servicer or its performance hereunder.
(g) No
later
than ten days prior to the deadline for the filing of an Distribution Report
on
Form 10-D in respect of any Trust that includes any of the Securitized Loans
serviced by the Subservicer, the Subservicer shall provide to the Master
Servicer notice of the occurrence of any of the following events along with
all
information, data, and materials related thereto as may be required to be
included in the related Distribution Report on Form 10-D (as specified in
the
provisions of Regulation AB referenced below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
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(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
Section
3.4. Servicer
Compliance Statement.
On or
before March 1 of each calendar year, the Subservicer shall deliver to TMHL,
the
Master Servicer and any Depositor a statement of compliance (“Compliance
Statement”) addressed to TMHL, the Master Servicer and such Depositor and signed
by an authorized officer of the Subservicer, to the effect that (i) a review
of
the Subservicer’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under the Agreement during
such period has been made under such officer’s supervision, and (ii) to the best
of such officers’ knowledge, based on such review, the Subservicer has fulfilled
all of its obligations under the Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been
a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and the
status thereof.
Section
3.5. Report
of Assessment of Compliance and Attestation.
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Subservicer
shall:
(i) deliver
to TMHL, the Master Servicer and any Depositor a report (in form and substance
reasonably satisfactory to TMHL, the Master Servicer and such Depositor)
regarding the Subservicer’s assessment of compliance with the Servicing Criteria
(“Servicing Assessment”) during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of
Regulation AB. Such report shall be addressed to TMHL, the Master Servicer
and
such Depositor and signed by an authorized officer of the Subservicer, and
shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit I hereto delivered to TMHL and the Master
Servicer concurrently with the execution of this Amendment;
(ii) deliver
to TMHL, the Master Servicer and any Depositor a report of a registered public
accounting firm reasonably acceptable to TMHL, the Master Servicer and such
Depositor that attests to, and reports on, the assessment of compliance made
by
the Subservicer and delivered pursuant to the preceding paragraph (“Attestation
Report”). Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange Act;
and
(iii) deliver
to TMHL, the Master Servicer any Depositor and any other Person that will
be
responsible for signing the certification required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx
Act of 2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification (a “Sarbanes Certification”) in the
form attached hereto as Exhibit II.
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The
Subservicer acknowledges that the parties identified in clause (a)(iii) above
may rely on the certification provided by the Subservicer and each Subcontractor
pursuant to such clause in signing a Sarbanes Certification and filing such
with
the Commission.
Section
3.6. Subcontractors.
(a) The
Subservicer shall not hire or otherwise utilize the services of any
Subcontractor to fulfill any of the obligations of the Subservicer as servicer
under the Agreement unless Subservicer complies with the provisions of paragraph
(b) of this Section. Further, the Subservicer shall not utilize the services
of
any “Subservicer.”
(b) It
shall
not be necessary for the Subservicer to seek the consent of TMHL, the Master
Servicer or any Depositor to the utilization of any Subcontractor. The
Subservicer shall provide the name of each Subcontractor to TMHL prior to
utilizing such Subcontractor. The Subservicer shall promptly upon request
provide to TMHL, the Master Servicer and any Depositor (or any designee of
the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to TMHL, the Master Servicer and such Depositor)
of the role and function of each Subcontractor utilized by the Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Subservicer shall cause any such Subcontractor used by
the
Subservicer for the benefit of TMHL, the Master Servicer and any Depositor
to
comply with the provisions of Sections 3.5 and 3.7 to the same extent as
if such
Subcontractor were the Subservicer. The Subservicer shall be responsible
for
obtaining from each Subcontractor and delivering to TMHL, the Master Servicer
and any Depositor each Servicing Assessment, and Attestation Report and Sarbanes
Certification required to be delivered by such Subcontractor under Section
3.5,
in each case as and when required to be delivered.
Section
3.7. Indemnification;
Remedies.
(a) The
Subservicer
shall indemnify TMHL, each affiliate of TMHL and each of the following parties
participating
in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Depositor (each an “Indemnified Party”), and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments,
and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
-8-
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained
in
any
information, report, certification, accountants’ letter or other
material
provided
under
this Section 3 by
or on
behalf of the Subservicer,
or
provided under this Article X by or on behalf of any Subcontractor (the
“Subservicer Information”),
or (B)
the omission or alleged omission to state in the Subservicer Information
a
material fact required to be stated in the Subservicer Information or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided,
by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Subservicer Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to whether
the
Subservicer Information or any portion thereof is presented together with
or
separately from such other information;
(ii) any
failure by the Subservicer
to
deliver any information, report, certification, accountants’ letter or other
material
when and
as required under this Section 3, including any failure by the Subservicer
to
identify pursuant to Section 3.6(b) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB;
or
(iii) any
breach by the Subservicer of a representation or warranty set forth in Section
3.2(a) or in a writing furnished pursuant to Section 3.2(b) and made as of
a
date prior to the closing date
of the
related Securitization Transaction, to the extent that such breach is not
cured
by such closing date, or any breach by the Subservicer of a representation
or
warranty in a writing furnished pursuant to Section 3.2(b) to the extent
made as
of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section
3.7, the Subservicer shall promptly reimburse TMHL, any Depositor, as
applicable, and each Person responsible for the preparation, execution or
filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by Subservicer or any Subcontractor.
(b) The
Subservicer shall indemnify and hold harmless the Master Servicer and each
of
its directors, officers, employees, agents and affiliates from and against
any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable
legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (i) any breach by the Subservicer of any of its obligations
hereunder, including particularly its obligations to provide any Servicing
Assessment, Attestation Report, Compliance Statement or any information,
data or
materials required to be included in any Exchange Act report, (ii) any
misstatement or omission in any information, data or materials provided by
the
Subservicer hereunder, or (iii) the negligence, bad faith or willful misconduct
of the Subservicer in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, then the Subservicer agrees that it shall
contribute to the amount paid or payable by the Master Servicer as a result
of
any claims, losses, damages or liabilities incurred by the Master Servicer
in
such proportion as is appropriate to reflect the relative fault of the Master
Servicer on the one hand and the Subservicer on the other. This indemnification
shall survive the termination of the Agreement or the termination of any
party
to the Agreement.
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(c) (i) Any
failure by the Subservicer or any Subcontractor to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 3, or any breach by the
Subservicer of a representation or warranty set forth in Section 3.2(a) or
in a
writing furnished pursuant to Section 3.2(b) and made as of a date prior
to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Subservicer
of a
representation or warranty in a writing furnished pursuant to Section 3.2(b)
to
the extent made as of a date subsequent to such closing date, shall, except
as
provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Subservicer under the Agreement, and shall entitle TMHL, the Master Servicer
or Depositor, as applicable, in its sole discretion to terminate the rights
and
obligations of the Subservicer as subservicer under the Agreement without
payment (notwithstanding anything in the Agreement to the contrary) (and,
if the
Subservicer is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor servicer reasonably acceptable to any Master
Servicer for such Securitization Transaction) of any compensation to the
Subservicer; provided
that to
the extent that any provision of the Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Subservicer as subservicer, such provision shall be given effect.
(ii) Any
failure by the Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 3.4 or 3.5, including any failure by the Subservicer
to identify pursuant to Section 3.6(b) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Subservicer
under the Agreement, and shall entitle TMHL, the Master Servicer or Depositor,
as applicable, in its sole discretion to terminate the rights and obligations
of
the Subservicer as subservicer under the Agreement without payment
(notwithstanding anything in the Agreement to the contrary) of any compensation
to the Subservicer; provided
that to
the extent that any provision of the Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Subservicer as subservicer, such provision shall be given effect.
(iii) The
Subservicer shall promptly reimburse TMHL (or any designee of TMHL, the Master
Servicer and any Depositor, as applicable, for all reasonable expenses incurred
by TMHL (or such designee), the Master Servicer or such Depositor, as such
are
incurred, in connection with the termination of the Subservicer as subservicer
and the transfer of servicing of the Securitized Loans to a successor
subservicer. The provisions of this paragraph shall not limit whatever rights
TMHL, the Master Servicer or any Depositor may have under other provisions
of
the Agreement or otherwise, whether in equity or at law, such as an action
for
damages, specific performance or injunctive relief.
(d) The
Subservicer shall indemnify and hold harmless TMHL, the respective present
and
former directors, officers, employees and agents of TMHL, each affiliate
of
TMHL, and each person, if any, who controls TMHL (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act), from and against
any and all losses, claims, liabilities, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain as and when such losses, claims,
liabilities, damages, penalties, fines, forfeitures, legal fees or expenses
or
related costs, judgments, or any other costs, fees or expenses are incurred,
insofar as such losses, claims, liabilities, damages, penalties, fines,
forfeitures, legal fees or expenses or related costs, judgments, or any other
costs, fees or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact
contained in the information provided by the Subservicer and included in
any
offering materials relating to a Securitization Transaction, including without
limitation, the registration statement, prospectus, prospectus supplement,
any
private placement memorandum, any offering circular, any computational
materials, and any amendments or supplements to the foregoing (the
“Securitization Materials”) or the omission or alleged omission to state in the
Securitization Materials a material fact required to be stated in the
Securitization Materials a material fact required to be stated in the
Securitization Materials or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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This
indemnification shall survive the termination of the Agreement or the
termination of the Agreement.
Section
3.8. Event
of Default.
The
following shall be an event of default under the Agreement:
Any
failure by the Subservicer to duly perform, within the required time period,
its
obligations to provide any Assessment of Compliance, Attestation Report,
Compliance Statement, Sarbanes Certification, or any other information, data
or
materials required to be provided hereunder, including any items required
to be
included in any 1934 Act report, 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 Subservicer by any
party
to this Agreement or the Trustee.
Section
3.9. For
purposes of the Agreement, including but not limited to Section 3.5, related
to
the requirements of delivery of Servicing Assessments, Attestation Reports,
Compliance Statements, Sarbanes Certifications, and additional monthly reporting
requirements, the Master Servicer shall be considered a third-party beneficiary
of the Agreement, entitled to all the rights and benefits thereof as if it
were
a direct party to the Agreement.
4. Exhibit
I
is added to the Agreement and incorporated herein.
5. Exhibit
II is added to the Agreement and incorporated herein.
6. This
Amendment supercedes the provisions of the Amendment to the Subservicing
Acknowledgment Agreement dated December 1, 2002, with respect to Securitized
Loans that are included in a Securitization Transaction that closed or will
close on or after January 1, 2006. Except as amended by this Amendment, the
terms, conditions and obligations of the Agreement shall remain in full force
and effect.
-11-
7. The
remedies set forth in Section 8.01 of the Servicing Agreement shall be available
to the Master Servicer and the Servicer with respect to an event of default
by
Cenlar pursuant to Section 3 hereof.
8. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but one
and
the same instrument.
9. This
Amendment becomes effective as of the date first written above.
-12-
IN
WITNESS WHEREOF, each party has caused this Amendment to be signed in its
corporate name on behalf of its proper officials duly authorized as of the
day ,
month and year first above written.
|
Owner/Servicer:
|
||
|
ATTEST:
|
XXXXXXXXX
MORTGAGE
|
|
|
HOME
LOANS, INC.
|
||
|
By:
/s/ Xxxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
Name: Xxxxxxx
X. Xxxxx
|
|
|
Title:
SVP
|
Title:
Senior Vice President
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxx
Xx, Xxx Xxxxxx 00000
|
||
|
Subservicer:
|
||
|
ATTEST:
|
CENLAR
FSB
|
|
|
By:
______________________________
|
By:
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
|
Name:
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
|
Title:
EVP & CFO
|
|
|
Address:
|
000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx,
XX 00000
|
||
|
Master
Servicer:
|
||
|
ATTEST:
|
XXXXX
FARGO BANK, N.A.
|
|
|
By:
______________________________
|
By:
/s/ Xxx
Xxxxx
|
|
|
Name:
|
Name:
Xxx Xxxxx
|
|
|
Title:
|
Title:
Vice President
|
|
|
Address:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
||
-13-
EXHIBIT
I
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Subservicer, and any applicable
Subcontractor, shall address, at a minimum, the criteria identified as below
as
“Applicable Servicing Criteria”. We have identified by name, any Subcontractor
that performs any of the servicing functions listed below:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
Subservicer for the Securitized Loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on Securitized Loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Securitized Loans serviced by
Subservicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to Subservicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on Securitized Loans is maintained as required by the
transaction agreements or related Mortgage documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on Securitized Loans, including any payoffs, made in accordance
with the
related Mortgage documents are posted to Subservicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related Mortgage documents.
|
X
|
|
1122(d)(4)(v)
|
Subservicer’s
records regarding the Securitized Loans agree with Subservicer’s records
with respect to an obligor’s unpaid principal balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's Securitized
Loans
(e.g., loan modifications or re-agings) are made, reviewed and
approved by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a Mortgage
is delinquent in accordance with the transaction agreements. Such
records
are maintained on at least a monthly basis, or such other period
specified
in the transaction agreements, and describe the entity’s activities in
monitoring delinquent Securitized Loans including, for example,
phone
calls, letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for Securitized Loans with
variable
rates are computed based on the related Mortgage
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s Mortgage documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable Mortgage documents and
state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related Securitized Loans, or such
other
number of days specified in the transaction agreements.
|
X
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by Subservicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from Subservicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by Subservicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
CENLAR
FSB
By: ________________________________
Name:
Title:
Date:
_______________
EXHIBIT
II
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
Subservicing
Acknowledgment Agreement
|
I,
________________________________, the _______________________ of Cenlar FSB,
certify to [the Depositor], TMHL and Xxxxx Fargo Bank, N.A. (the “Master
Servicer”), and their officers, with the knowledge and intent that they will
rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Subservicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Subservicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Securitized Loans by the
Subservicer during 200[ ] that were delivered by the Subservicer to the Master
Servicer pursuant to the Agreement (collectively, the “Subservicer Servicing
Information”);
(2) Based
on
my knowledge, the Subservicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Subservicer Servicing Information;
(3) Based
on
my knowledge, all of the Subservicer Servicing Information required to be
provided by the Subservicer under the Agreement has been provided to the
Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Subservicer as
subservicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report,
the Subservicer has fulfilled its obligations under the Agreement in all
material respects; and
(5) The
Compliance Statement required to be delivered by the Subservicer pursuant
to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Subservicer and by each Subcontractor (as defined in the
Agreement) pursuant to the Agreement, have been provided to the Master Servicer.
Any material instances of noncompliance described in such reports have been
disclosed to the Master Servicer. Any material instance of noncompliance
with
the Servicing Criteria has been disclosed in such reports.
By: ________________________________
Name:
Title:
Date:
__________________
THIRD
AMENDMENT TO SUBSERVICING ACKNOWLEDGMENT AGREEMENT
This
Third Amendment to the Subservicing Acknowledgment Agreement dated as of
March
1, 2002, as amended by that certain Amendment to Subservicing Acknowledgment
Agreement dated as of December 1, 2002, and by that certain Second Amendment
to
Subservicing Acknowledgment Agreement dated as of January 1, 2006 (the “Second
Amendment”) between Cenlar FSB (“Subservicer”) and Xxxxxxxxx Mortgage Home
Loans, Inc., a Delaware corporation (“TMHL”) (the “Agreement”) is made as of the
1st day of August 2007, by and between the Subservicer, TMHL, and Xxxxx Fargo
Bank, NA, as Master Servicer (“Master Servicer”).
PRELIMINARY
STATEMENT
WHEREAS,
TMHL, the Subservicer and the Master Servicer are parties to the Agreement,
wherein the Subservicer has agreed to subservice the Securitized
Loans;
WHEREAS,
TMHL, the Subservicer and the Master Servicer desire to amend the Agreement
to
amend Exhibit I, Servicing Criteria to be Addressed in Assessment of
Compliance.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, TMHL, the Subservicer and the Master Servicer
agree as follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Agreement.
2. Exhibit
I, Servicing Criteria to be Addressed in Assessment of Compliance, set forth
in
the Second Amendment, is hereby replaced by Exhibit I, Servicing Criteria
to be
Addressed in Assessment of Compliance, attached hereto and incorporated herein
by this reference.
3. Except
as
amended by this Amendment, the terms, conditions and obligations of the
Agreement shall remain in full force and effect.
4. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but one
and
the same instrument.
5. This
Amendment becomes effective as of the date first written above.
IN
WITNESS WHEREOF, each party has caused this Amendment to be signed in its
corporate name on behalf of its proper officials duly authorized as of the
day,
month and year first above written.
|
Owner/Servicer:
|
||
|
ATTEST:
|
XXXXXXXXX
MORTGAGE
|
|
|
|
HOME
LOANS, INC.
|
|
|
By:
/s/ Xxxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Executive Vice President
|
Title:
Senior Vice President
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxx
Xx, Xxx Xxxxxx 00000
|
||
|
Subservicer:
|
||
|
ATTEST:
|
CENLAR
FSB
|
|
|
By:
/s/ Xxxx
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
|
Name:
Xxxx Xxxxx
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
Assistant Secretary
|
Title:
President
|
|
|
Address:
|
000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx,
XX 00000
|
||
|
Master
Servicer:
|
||
|
ATTEST:
|
XXXXX
FARGO BANK, N.A.
|
|
|
By:
/s/ Xxxxxx X.
Xxxxxx
|
By:
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxx
|
Name:
Xxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
Title:
Vice President
|
|
|
Address:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
|
||
-2-
EXHIBIT
I
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Subservicer, and any applicable
Subcontractor, shall address, at a minimum, the criteria identified as below
as
“Applicable Servicing Criteria”. We have identified by name, any Subcontractor
that performs any of the servicing functions listed below:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
Subservicer for the Securitized Loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on Securitized Loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Securitized Loans serviced by
Subservicer.
|
X
[for
A, B and D only]
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to Subservicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on Securitized Loans is maintained as required by the
transaction agreements or related Mortgage documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on Securitized Loans, including any payoffs, made in accordance
with the
related Mortgage documents are posted to Subservicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related Mortgage documents.
|
X
|
|
1122(d)(4)(v)
|
Subservicer’s
records regarding the Securitized Loans agree with Subservicer’s records
with respect to an obligor’s unpaid principal balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's Securitized
Loans
(e.g., loan modifications or re-agings) are made, reviewed and
approved by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a Mortgage
is delinquent in accordance with the transaction agreements. Such
records
are maintained on at least a monthly basis, or such other period
specified
in the transaction agreements, and describe the entity’s activities in
monitoring delinquent Securitized Loans including, for example,
phone
calls, letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for Securitized Loans with
variable
rates are computed based on the related Mortgage
documents.
|
X
|
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s Mortgage documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable Mortgage documents and
state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related Securitized Loans, or such
other
number of days specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by Subservicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from Subservicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by Subservicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
CENLAR
FSB
By: ________________________________
Name:
Title:
Date:
_______________
FOURTH
AMENDMENT TO SUBSERVICING ACKNOWLEDGMENT AGREEMENT
This
Fourth Amendment to the Subservicing Acknowledgment Agreement dated as of
March
1, 2002, as amended by that certain Amendment to Subservicing Acknowledgment
Agreement dated as of December 1, 2002, by that certain Second Amendment
to
Subservicing Acknowledgment Agreement dated as of January 1, 2006 (the “Second
Amendment”), and by that certain Third Amendment to Subservicing Acknowledgment
Agreement dated as of August 1, 2007, between Cenlar FSB (“Subservicer”) and
Xxxxxxxxx Mortgage Home Loans, Inc., a Delaware corporation (“TMHL”) (the
“Agreement”) is made as of the 1st day of October 2007, by and between the
Subservicer, TMHL, and Xxxxx Fargo Bank, NA, as Master Servicer (“Master
Servicer”).
PRELIMINARY
STATEMENT
WHEREAS,
TMHL, the Subservicer and the Master Servicer are parties to the Agreement,
wherein the Subservicer has agreed to subservice the Securitized
Loans;
WHEREAS,
TMHL, the Subservicer and the Master Servicer desire to amend the Agreement
to
amend Subservicer’s obligations with respect to Section 3.01 and 4.02 of the
Servicing Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, TMHL, the Subservicer and the Master Servicer
agree as follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Agreement.
2. Section
3.01(c) of the Servicing Agreement is modified to provide as
follows:
Notwithstanding
anything to the contrary herein, if a Securitized Loan is in default or such
default is, in the judgment of the Subservicer, reasonably foreseeable (within
the meaning of the REMIC provisions of the Code), the Subservicer may not
permit
any modification of a Securitized Loan that would extend the maturity date
of
such Securitized Loan past the final scheduled distribution date of the related
certificate.
3. In
addition to the statements delivered to the Master Servicer as set forth
in
Section 4.02 of the Servicing Agreement, with respect to any Securitized
Loan
modified in accordance with Section 2 hereof, the Subservicer shall provide
to
the Master Servicer the information set forth on Exhibit A attached hereto
and
made a part thereof and deliver copies of the executed loan
modifications.
4. With
respect to each subject Trust, as long as the rated securities issued with
respect thereto are outstanding the provisions, of the Servicing Agreement
and
the Agreement, with respect to Securitized Loan modifications, shall not
be
amended or modified unless written notice of such amendment or modification
is
provided to each Rating Agency.
5. Except
as
amended by this Amendment, the terms, conditions and obligations of the
Agreement shall remain in full force and effect.
6. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but one
and
the same instrument.
7. This
Amendment becomes effective as of the date first written above.
-2-
IN
WITNESS WHEREOF, each party has caused this Amendment to be signed in its
corporate name on behalf of its proper officials duly authorized as of the
day,
month and year first above written.
|
Owner/Servicer:
|
||
|
ATTEST:
|
XXXXXXXXX
MORTGAGE
|
|
|
|
HOME
LOANS, INC.
|
|
|
By:
/s/ Xxxxxx
Xxxxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxx
|
|
|
Title:
Executive Vice President
|
Title:
Senior Vice President
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxx
Xx, Xxx Xxxxxx 00000
|
||
|
Subservicer:
|
||
|
ATTEST:
|
CENLAR
FSB
|
|
|
By:
/s/ Xxxx
Xxxxx
|
By:
/s/ Xxxxxxx X.
Xxxxxxxxx
|
|
|
Name:
Xxxx Xxxxx
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
Assistant Secretary
|
Title:
President
|
|
|
Address:
|
000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx,
XX 00000
|
||
|
Master
Servicer:
|
||
|
ATTEST:
|
XXXXX
FARGO BANK, N.A.
|
|
|
By:
/s/ Xxxxxx X.
Xxxxxx
|
By:
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxx
|
Name:
Xxxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
Title:
Vice President
|
|
|
Address:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
|
||
-3-
EXHIBIT
A
MODIFIED
LOAN REPORTING REQUIREMENTS
With
respect to modified Securitized Loans the remittance reports shall include,
in a
form mutually acceptable to the Subservicer and the Master Servicer, the
following information for the loan modifications completed during that monthly
reporting period:
|
1.
|
The
number of loan modifications;
|
|
2.
|
The
date of each loan modification, and
|
|
3.
|
The
amount of principal and interest forgiveness with respect to each
loan
modification.
|
-4-
FIFTH
AMENDMENT TO SUBSERVICING ACKNOWLEDGMENT AGREEMENT
This
Fifth Amendment to the Subservicing Acknowledgment Agreement dated as of
March
1, 2002, by and between Cenlar FSB (“Subservicer”) and Xxxxxxxxx Mortgage Home
Loans, Inc., a Delaware corporation (“TMHL”) as amended by that certain
Amendment to Subservicing Acknowledgment Agreement dated as of December
1, 2002,
by that certain Second Amendment to Subservicing Acknowledgment Agreement
dated
as of January 1, 2006, by that certain Third Amendment to Subservicing
Acknowledgment Agreement dated as of August 1, 2007, and by that certain
Fourth
Amendment to the Subservicing Acknowledgement Agreement dated as of October
1,
2007 (collectively, the “Agreement”), is made as of the 1st
day of
February, 2008, by and among the Subservicer, TMHL, and Xxxxx Fargo Bank,
NA, as
Master Servicer (“Master Servicer”).
PRELIMINARY
STATEMENT
WHEREAS,
TMHL, the Subservicer and the Master Servicer are parties to the Agreement,
wherein the Subservicer has agreed to subservice the Securitized
Loans;
WHEREAS,
TMHL, the Subservicer and the Master Servicer desire to amend the Agreement
to
amend Subservicer’s obligations with respect to the Servicing
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, TMHL, the Subservicer and the Master
Servicer
agree as follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Agreement.
2. Article
1
of the Servicing Agreement entitled “Definitions “ is amended to add the
following definitions:
Loan
Modification Performance Test: A Mortgagor makes its cumulative scheduled
Monthly Payments for the twelve (12) month period immediately after the
loan
modification date.
Mortgage
Pool: With respect to each Securitized Loan, the pool of Securitized Loans
as
indicated on the Mortgage Loan Schedule, all of the Mortgage Loans indicated
as
being included in a specific pool, constituting a separate Mortgage
Pool.
3. Section
3.01 of the Servicing Agreement is amended by adding the following paragraph
at
the end:
If
in
connection with any loan modification, a Securitized Loan has been modified
to
increase its principal balance by the amount of any Monthly Advances or
any
Servicing Advances previously made by the Servicer on behalf of the related
Mortgagor (any such amount, a “Capitalization Reimbursement Amount”), the
Servicer may be reimbursed for such Capitalization Reimbursement Amount
as
provided in Section 3.04.
4. Section
3.04 is amended as follows:
(a)
by
adding the following clause after each reference to “Monthly Advances” in clause
(vi) thereof and after the reference to “unreimbursed Servicing Advances” in
clause (vii) thereof:
(excluding
Capitalization Reimbursement Amounts)
(b)
by
adding the following new clause (xi) and renumbering the existing clauses
(xi)
and (xii) as clauses (xii) and (xiii):
(xi)
to
reimburse itself for any unreimbursed Capitalization Reimbursement Amounts
solely from collections on account of principal in the related Mortgage
Pool;
5. In
addition to the statements delivered to the Master Servicer as set forth
in
Section 4.02 of the Servicing Agreement, with respect to any Securitized
Loan
modified in accordance with Section 3.01 of the Agreement, the Subservicer
shall
provide to the Master Servicer the information set forth on Exhibit A attached
hereto and made a part thereof.
6. Except
as
amended by this Amendment, the terms, conditions and obligations of the
Agreement shall remain in full force and effect.
7. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but
one and
the same instrument.
8. This
Amendment becomes effective as of the date first written above.
-2-
IN
WITNESS WHEREOF, each party has caused this Amendment to be signed in its
corporate name on behalf of its proper officials duly authorized as of
the day,
month and year first above written.
|
Owner/Servicer:
|
||||
|
ATTEST:
|
XXXXXXXXX
MORTGAGE
|
|||
|
HOME
LOANS, INC.
|
||||
|
By:
|
/s/ Xxxxxx Xxxxxxx |
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx
Xxxxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
|
Title:
|
Executive
Vice President
|
Title:
|
Senior
Vice President
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
|
|||
|
Xxxxx
Xx, Xxx Xxxxxx 00000
|
||||
|
Subservicer:
|
||||
|
ATTEST:
|
CENLAR
FSB
|
|||
|
By:
|
/s/ F. Xxx Xxxx |
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name:
|
F.
Xxx Xxxx
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Secretary/Vice
President
|
Title:
|
President
|
|
|
Address:
|
000
Xxxxxxxx Xxxxxxxxx
|
|||
|
Xxxxx,
XX 00000
|
||||
|
Master
Servicer:
|
||||
|
ATTEST:
|
XXXXX
FARGO BANK, N.A.
|
|||
| By: | /s/ Xxxxx X. Xxxxxxxxx |
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Name:
|
Xxxxx
X. Xxxxxxxxx
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Vice
President
|
Title:
|
Vice
President
|
|
|
Address:
|
0000
Xxx Xxxxxxxxx Xxxx
|
|||
|
|
Xxxxxxxx,
XX 00000
|
|||
EXHIBIT
A
MODIFIED
LOAN REPORTING REQUIREMENTS
With
respect to modified Securitized Loans the monthly report shall include,
in a
form mutually acceptable to the Subservicer and the Master Servicer, the
following information for the loan modifications:
|
1.
|
In
the aggregate and by modification type (i.e. interest rate change,
maturity date change, principal forgiveness), the percentage
(by current
loan balance) and number of loans that were modified in the current
period;
|
|
2.
|
The
amount of principal forgiveness for the current
period;
|
|
3.
|
Upon
completion of the twelve (12) month period immediately following
the loan
modification date, indicate whether or not each modified loan
has passed
the Loan Modification Performance
Test;
|
|
4.
|
The
delinquency status for all loans modified since the closing
date;
|
|
5.
|
The
number of times the loan has been modified by the
Subservicer;
|
|
6.
|
The
date of the most recent loan
modification;
|
|
7.
|
The
number of modifications made during the past 12
months;
|
|
8.
|
Indicate
whether each modified loan is current versus in
default;
|
|
9.
|
The
modified rate of each modified
loan;
|
|
10.
|
The
amount of Capitalized Reimbursement Amounts that the servicer
repaid
itself in the current period; and
|
|
11.
|
The
amount of principal and interest forgiveness with respect to
each loan
modification.
|
SIXTH
AMENDMENT TO SUBSERVICING ACKNOWLEDGMENT AGREEMENT
This
Sixth Amendment to the Subservicing Acknowledgment Agreement dated as of
March
1, 2002, by and between Cenlar FSB (“Subservicer”) and Xxxxxxxxx Mortgage Home
Loans, Inc., a Delaware corporation (“TMHL”) as amended by that certain
Amendment to Subservicing Acknowledgment Agreement dated as of December
1, 2002,
by that certain Second Amendment to Subservicing Acknowledgment Agreement
dated
as of January 1, 2006, by that certain Third Amendment to Subservicing
Acknowledgment Agreement dated as of August 1, 2007, by that certain Fourth
Amendment to the Subservicing Acknowledgement Agreement dated as of October
1,
2007, and by that certain Fifth Amendment to Subservicing Acknowledgment
Agreement dated as of February 1, 2008 (collectively, the “Agreement”), is made
as of the 1st
day of
February, 2008, by and among the Subservicer, TMHL, and Xxxxx Fargo Bank,
NA, as
Master Servicer (“Master Servicer”).
PRELIMINARY
STATEMENT
WHEREAS,
TMHL, the Subservicer and the Master Servicer are parties to the Agreement,
wherein the Subservicer has agreed to subservice the Securitized
Loans;
WHEREAS,
TMHL, the Subservicer and the Master Servicer desire to amend the Agreement
to
amend Subservicer’s obligations with respect to the Servicing
Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, TMHL, the Subservicer and the Master
Servicer
agree as follows:
1. Capitalized
terms used and not defined in this Amendment shall have the meanings given
to
such terms in the Agreement.
Article
1
of the Servicing Agreement entitled “Definitions “ is amended to delete the
definition of “Qualified Depository in its entirety and replace it with the
following:
Qualified
Depository: Any of (i) a federal or state-chartered depository institution
whose
(a) commercial paper, short-term debt obligations or other short-term deposits
are rated at least “A-2” by S&P, “P-1” by Xxxxx’x and “F1” by Fitch or whose
long-term unsecured debt obligations are rated at least “BBB+” by S&P and
“A2” by Xxxxx’x, if the deposits are to be held in the account for less than 30
days, or (b) commercial paper, short-term debt obligations, or other short-term
deposits are rated at least “A-1+” by S&P, “P-1” by Xxxxx’x and “F1+” by
Fitch, or long-term unsecured debt obligations are rated at least “AA-“ by
S&P and “Aaa” by Xxxxx’x, if the deposits are to be held in the account for
more than 30 days, but no more than 365 days (with respect to the ratings
specified in this clause (i), in each case if such rating agency is a Rating
Agency, and such applicable ratings from S&P, Xxxxx’x and Fitch, (the
“Required Ratings”); provided, that following a downgrade, withdrawal or
suspension of such institution’s ratings below such ratings set forth above,
each account shall promptly (and in any case within not more than 30 calendar
days) be transferred to accounts which have the Required Ratings, or (ii)
the
corporate trust department of a federal or state-chartered depository
institution subject to regulations regarding fiduciary funds on deposit
similar
to Title 12 of the Code of Federal Regulations Section 9.10(b), which,
in either
case, has corporate trust powers, acting in its fiduciary capacity.
2. Section
3.03(a) of the Servicing Agreement is amended by deleting the phrase “Xxxxxxxxx
Mortgage Home Loans, Inc., in trust for one or more Xxxxxxxxx Mortgage
Securities Trusts,” and replacing it with the following:
[Servicer’s
Name], in trust for the Trustee on behalf of Xxxxxxxxx Mortgage Securities
Trust
20 - ].
3. Section
3.05 is amended by deleting the phrase “Xxxxxxxxx Mortgage Home Loans, Inc., in
trust for one or more Xxxxxxxxx Mortgage Securities Trusts,” and replacing it
with the following:
[Servicer’s
Name], in trust for the Trustee on behalf of Xxxxxxxxx Mortgage Securities
Trust
20 - ].
4. Except
as
amended by this Amendment, the terms, conditions and obligations of the
Agreement shall remain in full force and effect.
5. This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original and all of which counterparts shall together constitute but
one and
the same instrument.
6. This
Amendment becomes effective as of the date first written above.
-2-
IN
WITNESS WHEREOF, each party has caused this Amendment to be signed in its
corporate name on behalf of its proper officials duly authorized as of
the day,
month and year first above written.
|
Owner/Servicer:
|
||||
|
ATTEST:
|
XXXXXXXXX
MORTGAGE
|
|||
|
HOME
LOANS, INC.
|
||||
|
By:
|
/s/ Xxxxxx Xxxxxxx |
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx
Xxxxxxx
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
|
Title:
|
Executive
Vice President
|
Title:
|
Senior
Vice President
|
|
|
Address:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
|
|||
|
Xxxxx
Xx, Xxx Xxxxxx 00000
|
||||
|
Subservicer:
|
||||
|
ATTEST:
|
CENLAR
FSB
|
|||
|
By:
|
/s/ F. Xxx Xxxx |
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
|
Name:
|
F.
Xxx Xxxx
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Secretary/Vice
President
|
Title:
|
President
|
|
|
Address:
|
000
Xxxxxxxx Xxxxxxxxx
|
|||
|
Xxxxx,
XX 00000
|
||||
|
Master
Servicer:
|
||||
|
ATTEST:
|
XXXXX
FARGO BANK, N.A.
|
|||
| By: | /s/ Xxxxx X. Xxxxxxxxx |
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Name:
|
Xxxxx
X. Xxxxxxxxx
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Vice
President
|
Title:
|
Vice
President
|
|
|
Address:
|
0000
Xxx Xxxxxxxxx Xxxx
|
|||
|
|
Xxxxxxxx,
XX 00000
|
|||
TRANSFER
NOTICE
February
28,
2008
Xxxxxxxxx
Mortgage Home Loans, Inc., as Servicer
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xx,
Xxx Xxxxxx 00000
Cenlar
FSB, as Sub-Servicer
X.X.
Xxx
00000
000
Xxxxxxxx Xxxxxxxxx
Xxxxx,
Xxx Xxxxxx 00000
You
are
hereby notified that as of March 3, 2008 (the “Effective Date”), the Securitized
Loans listed on the attached schedule (the “Securitized Loans”) have been
transferred to Xxxxxxxxx Mortgage Securities Trust 2008-1 (the “Trust”). You
agree to service such Securitized Loans as Securitized Loans under that
certain
Servicing Agreement dated as of March 1, 2002 (the “Servicing Agreement”), as
amended by the Amendment to Servicing Agreement, dated as of December
1, 2002
and the Second Amendment to Servicing Agreement dated as of January 1,
2006, by
and among Xxxxxxxxx Mortgage Home Loans, Inc. (“TMHL”), as servicer (the
“Servicer”), TMHL, as seller (the “Seller”) and Xxxxx Fargo Bank, N. A., as
master servicer (the “Master Servicer”), and that certain Sub-Servicing
Acknowledgment Agreement dated as of March 1, 2002, as amended by the
Amendment
to Sub-Servicing Acknowledgement Agreement dated as of December 1, 2002,
the
Second Amendment to Sub-Servicing Acknowledgement Agreement, dated as
of January
1, 2006, by the Third Amendment to Sub-Servicing Acknowledgement Agreement,
dated as of August 1, 2007, by the Fourth Amendment to Sub-Servicing
Acknowledgement Agreement dated as of October 1, 2007, by the Fifth Amendment
to
Sub-Servicing Acknowledgement Agreement dated as of February 1, 2008,
and by the
Sixth Amendment to Sub-Servicing Acknowledgement Agreement dated as of
February
1, 2008, therewith (the “Sub-Servicing Agreement”), by and among the Servicer,
Cenlar FSB (the “Sub-Servicer”) and the Master Servicer. In addition, you shall
recognize the Trust or the Master Servicer or LaSalle Bank National Association
(the “Trustee”), acting as agents for the Trust, as having the same rights as
TMHL as Seller under the Servicing Agreement with respect to such transferred
Securitized Loans. The address for notice for the Trustee for these Securitized
Loans is LaSalle Bank National Association, 0000 Xxxxxxxx Xxxxxxx, Xxxxxx,
XX,
00000, Attn: Xxxxxxxxx 0000-0, Fax (000) 000-0000.
XXXXXXXXX
MORTGAGE HOME LOANS, INC.
As
Seller
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx, Senior Vice President
Acknowledged
by:
XXXXXXXXX
MORTGAGE HOME LOANS, INC., as Servicer
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Vice President
CENLAR
FSB, as Sub-Servicer
By:
/s/
Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: President
