XXXXX FARGO BANK, N.A.,
as RMBS Master Servicer,
AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-2,
as Issuer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as Seller
and
AMERICAN HOME MORTGAGE SERVICING, INC.
as RMBS Servicer
RMBS SERVICING AGREEMENT
Dated as of June 22, 2005
Mortgage Loans
American Home Mortgage Investment Trust 2005-2
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01 Definitions.....................................................7
Section 1.02 Other Definitional Provisions...................................7
Section 1.03 Interest Calculations...........................................8
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the RMBS Servicer......8
Section 2.02 Existence.......................................................9
Section 2.03 Enforcement of Representations and Warranties...................9
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 RMBS Servicer to Act as Servicer...............................11
Section 3.02 Subservicing Agreements Between RMBS Servicer and
Subservicers...................................................13
Section 3.03 Successor Subservicers.........................................14
Section 3.04 Liability of the RMBS Servicer.................................14
Section 3.05 Assumption or Termination of Subservicing Agreements by RMBS
Master Servicer................................................14
Section 3.06 Collection of Mortgage Loan Payments...........................15
Section 3.07 Withdrawals from the Protected Account.........................18
Section 3.08 Collection of Taxes Assessments and Similar Items; Servicing
Accounts.......................................................20
Section 3.09 Access to Certain Documentation and Information Regarding
the Mortgage Loans.............................................20
Section 3.10 Maintenance of Primary Insurance Policies; Collection
Thereunder.....................................................21
Section 3.11 Maintenance of Hazard Insurance and Fidelity Coverage..........21
Section 3.12 Due-on-Sale Clauses; Assumption Agreements.....................23
Section 3.13 Realization Upon Defaulted Mortgage Loans......................23
Section 3.14 RMBS Indenture Trustee to Cooperate; Release of Mortgage
Files..........................................................25
Section 3.15 Subservicing Compensation......................................26
Section 3.16 Annual Statements of Compliance................................26
Section 3.17 Annual Independent Public Accountants' Servicing Report........27
Section 3.18 Optional Purchase of Defaulted Mortgage Loans..................28
Section 3.19 Information Required by the Internal Revenue Service
Generally and Reports of Foreclosures and Abandonments of
Mortgaged Property.............................................28
Section 3.20 Fair Credit Reporting Act......................................28
Section 3.21 Payment Options................................................28
Section 3.22 Waiver of Prepayment Charges...................................28
ARTICLE IV
Servicing Certificate
Section 4.01 Remittance Reports.............................................29
Section 4.02 Reserved.......................................................30
Section 4.03 Reserved.......................................................30
Section 4.04 Advances.......................................................30
Section 4.05 Compensating Interest Payments.................................31
Section 4.06 Annual Certification...........................................31
ARTICLE V
The RMBS Servicer
Section 5.01 Liability of the RMBS Servicer.................................32
Section 5.02 Merger or Consolidation of or Assumption of the Obligations
of the RMBS Servicer...........................................32
Section 5.03 Limitation on Liability of the RMBS Servicer and Others........32
Section 5.04 RMBS Servicer Not to Resign....................................33
Section 5.05 Delegation of Duties...........................................34
Section 5.06 Indemnification................................................34
Section 5.07 Duties of the RMBS Servicer With Respect to the Indenture......35
Section 5.08 Patriot Act....................................................35
ARTICLE VI
Default
Section 6.01 Servicing Default..............................................37
Section 6.02 RMBS Master Servicer to Act; Appointment of Successor..........40
Section 6.03 Reserved.......................................................42
Section 6.04 Waiver of Defaults.............................................42
ARTICLE VII
Miscellaneous Provisions
Section 7.01 Amendment......................................................43
Section 7.02 GOVERNING LAW..................................................43
Section 7.03 Notices........................................................43
Section 7.04 Severability of Provisions.....................................44
Section 7.05 Third-Party Beneficiaries......................................45
Section 7.06 Counterparts...................................................45
Section 7.07 Effect of Headings and Table of Contents.......................45
Section 7.08 Termination....................................................45
Section 7.09 No Petition....................................................45
Section 7.10 No Recourse....................................................45
Section 7.11 Consent to Jurisdiction........................................45
EXHIBIT A - MORTGAGE LOAN SCHEDULE...........................................A-1
EXHIBIT B - FORM OF REQUEST FOR RELEASE......................................B-1
EXHIBIT C-1 - FORM OF CERTIFICATION TO BE PROVIDED BY
THE RMBS SERVICER...................................................C-1
EXHIBIT C-2 - RESERVED.......................................................C-2
This RMBS Servicing Agreement, dated as of June 22, 2005,
among Xxxxx Fargo Bank, N.A., as RMBS Master Servicer ("RMBS Master Servicer"),
American Home Mortgage Investment Trust 2005-2, as Issuer (the "Issuer"),
American Home Mortgage Acceptance, Inc. as Seller (the "Seller"), Deutsche Bank
National Trust Company, as Indenture Trustee (the "Indenture Trustee") and
American Home Mortgage Servicing, Inc., as RMBS Servicer ("RMBS Servicer").
W I T N E S S E T H T H A T :
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase
Agreement and the related Group I, Group II, Group III, Group IV, Group V and
Group VI Subsequent Mortgage Loan Purchase Agreement, American Home Mortgage
Securities LLC (the "Company" or "Depositor") will acquire the Mortgage Loans
and the related Group I, Group II, Group III, Group IV, Group V and Group VI
Subsequent Mortgage Loans;
WHEREAS, the Company will create American Home Mortgage
Investment Trust 2005-2, a Delaware statutory trust (the "Issuer"), and will
transfer the Mortgage Loans and the related Subsequent Mortgage Loans and all of
its rights under the Mortgage Loan Purchase Agreement and the related Group I,
Group II, Group III, Group IV, Group V and Group VI Subsequent Mortgage Loan
Purchase Agreement to the Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated
Trust Agreement dated as of June 22, 2005 ("Trust Agreement") among the Company,
as depositor, M&T Trust Company of Delaware, as owner trustee ("Owner Trustee")
and Xxxxx Fargo Bank, N.A., as securities administrator (the "Securities
Administrator"), the Company will convey the Mortgage Loans to the Issuer in
exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Trust Certificates, 2005-2 ("Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of
June 22, 2005 ("Indenture") among the Issuer, the Securities Administrator and
the Indenture Trustee, the Issuer will pledge the Mortgage Loans and issue and
transfer to or at the direction of the Purchaser the Mortgage-Backed Notes,
Series 2005-2, Class I-A-1, Class I-A-2, Class I-A-3, Class II-A-1 Class II-A-2,
Class II-A-3, Class III-A, Class IV-A-1, Class IV-A-2, Class IV-A-3, Class
V-A-1, Class V-A-2, Class V-A-3, Class V-A-4-A, Class V-A-4-B, Class V-A-4-C,
Class V-A-4-D, Class VI-A, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class B, Class V-M-1, Class V-M-2, Class V-M-3, Class V-M-4, Class V-M-5,
Class V-B, Class N-1 and Class N-2 Notes; and
WHEREAS, pursuant to the terms of the RMBS Master Servicing
Agreement, the RMBS Master Servicer will master service the Mortgage Loans set
forth on the Mortgage Loan Schedule for the benefit of the holders of the Notes;
WHEREAS, pursuant to the terms of this RMBS Servicing
Agreement, the RMBS Servicer shall service the Mortgage Loans for the benefit of
the Issuer, the Indenture Trustee and the holders of the Group I, Group II,
Group III, Group IV and Group V Notes (collectively, the "Notes");
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
For all purposes of this RMBS Servicing Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Definitions contained in Appendix A to the Indenture which is
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this RMBS Servicing Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used in this RMBS Servicing Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this RMBS Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this RMBS Servicing Agreement
or in any such certificate or other document, to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this RMBS
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this RMBS Servicing Agreement or in any
such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this RMBS Servicing Agreement shall refer to this RMBS
Servicing Agreement as a whole and not to any particular provision of this RMBS
Servicing Agreement; Section and Exhibit references contained in this RMBS
Servicing Agreement are references to Sections and Exhibits in or to this RMBS
Servicing Agreement unless otherwise specified; and the term "including" shall
mean "including without limitation".
(d) The definitions contained in this RMBS Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03 INTEREST CALCULATIONS.
All calculations of interest hereunder that are made in respect of the
Stated Principal Balance of a Mortgage Loan shall be made on the basis of a 360
day year consisting of twelve 30 day months, notwithstanding the terms of the
related Mortgage Note and Mortgage.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 REPRESENTATIONS AND WARRANTIES REGARDING THE RMBS
SERVICER.
The RMBS Servicer represents and warrants to the Issuer, the Indenture
Trustee, the Note Insurer and the RMBS Master Servicer, that:
(i) The RMBS Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland
and has the corporate power to own its assets and to transact the
business in which it is currently engaged. The RMBS Servicer is duly
qualified to do business and is in good standing in each jurisdiction
in which the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the
RMBS Servicer or the validity or enforceability of the Mortgage Loans;
(ii) The RMBS Servicer has the power and authority to make,
execute, deliver and perform this RMBS Servicing Agreement and all of
the transactions contemplated under this RMBS Servicing Agreement, and
has taken all necessary corporate action to authorize the execution,
delivery and performance of this RMBS Servicing Agreement. When
executed and delivered, this RMBS Servicing Agreement will constitute
the legal, valid and binding obligation of the RMBS Servicer
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) The RMBS Servicer is not required to obtain the consent
of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this RMBS Servicing
Agreement, except for such consent, license, approval or authorization,
or registration or declaration, as shall have been obtained or filed,
as the case may be;
(iv) The execution and delivery of this RMBS Servicing
Agreement and the performance of the transactions contemplated hereby
by the RMBS Servicer will not violate any provision of any existing law
or regulation or any order or decree of any court applicable to the
RMBS Servicer or any provision of the charter or bylaws of the RMBS
Servicer, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the RMBS Servicer is a party or by
which the RMBS Servicer may be bound;
(v) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending (other
than litigation with respect to which pleadings or documents have been
filed with a court, but not served on the RMBS Servicer), or to the
knowledge of the RMBS Servicer threatened, against the RMBS Servicer or
any of its properties or with respect to this RMBS Servicing Agreement
or the Notes or the Certificates which, to the knowledge of the RMBS
Servicer, has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this RMBS Servicing
Agreement; and
(vi) The RMBS Servicer is a member of MERS in good standing,
and will comply in all material respects with the rules and procedures
of MERS in connection with the servicing of the Mortgage Loans that are
registered with MERS.
The foregoing representations and warranties shall survive any
termination of the RMBS Servicer hereunder.
Section 2.02 EXISTENCE.
The Issuer will keep in full effect its existence, rights and
franchises as a statutory trust under the laws of the State of Delaware (unless
it becomes, or any successor Issuer hereunder is or becomes, organized under the
laws of any other state or of the United States of America, in which case the
Issuer will keep in full effect its existence, rights and franchises under the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this RMBS Servicing
Agreement.
Section 2.03 ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES.
The Indenture Trustee, as pledgee of the Mortgage Loans, shall enforce
the representations and warranties and related obligations for breaches thereof
of the Seller pursuant to the Mortgage Loan Purchase Agreement or the related
Group I, Group II, Group III, Group IV or Group V Subsequent Mortgage Loan
Purchase Agreement, as applicable. Upon the discovery by the Seller, the RMBS
Master Servicer, the Indenture Trustee or the Company of a breach of any of the
representations and warranties made in the Mortgage Loan Purchase Agreement or
the related Group I, Group II, Group III, Group IV or Group V Subsequent
Mortgage Loan Purchase Agreement, as applicable in respect of any Mortgage Loan
which materially and adversely affects the interests of the Noteholders, the
Note Insurer or the Certificateholders, the party discovering the same shall
give prompt written notice to the other parties. The Indenture Trustee shall
promptly notify the Seller and request that, pursuant to the terms of the
Mortgage Loan Purchase Agreement or the Group I, Group II, Group III, Group IV
or Group V Subsequent Mortgage Loan Purchase Agreement, as applicable, the
Seller either (i) cure such breach in all material respects or (ii) purchase
such Mortgage Loan or such Group I, Group II, Group III, Group IV or Group V
Subsequent Mortgage Loan, in each instance in accordance with the Mortgage Loan
Purchase Agreement or the Group I, Group II, Group III, Group IV or Group V
Subsequent Mortgage Loan Purchase Agreement, as applicable; provided that the
Seller shall, subject to the conditions set forth in the Mortgage Loan Purchase
Agreement, have the option to substitute an Eligible Substitute Mortgage Loan or
Eligible Substitute Mortgage Loans for such Mortgage Loan upon delivery of an
Officer's Certificate to the Indenture Trustee stating that such Eligible
Substitute Mortgage Loan satisfies the definition of Eligible Substitute
Mortgage Loan set forth in Appendix A to the Indenture and that the Substitution
Adjustment Amount, if any, has been deposited into the Protected Account.
Monthly Payments due with respect to Eligible Substitute Mortgage Loans in the
month of substitution shall not be part of the Trust Estate and will be retained
by the RMBS Servicer and remitted by the RMBS Servicer to the Seller on the next
succeeding Payment Date. For the month of substitution, distributions to the
Securities Administrator Collection Account pursuant to this Agreement will
include the Monthly Payment due on a Deleted Mortgage Loan for such month and
thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan. The RMBS Servicer shall amend or cause to
be amended the RMBS Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan and the substitution of the related Eligible Substitute
Mortgage Loan and the RMBS Servicer shall promptly deliver the amended RMBS
Mortgage Loan Schedule to the RMBS Master Servicer, Owner Trustee, Securities
Administrator and Indenture Trustee.
In connection with the substitution of one or more Eligible Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the RMBS Servicer will
determine the amount (such amount, a "Substitution Adjustment Amount"), if any,
by which the aggregate Stated Principal Balance of all such Eligible Substitute
Mortgage Loans as of the date of substitution is less than the aggregate
principal balance of all such Deleted Mortgage Loans (after application of the
principal portion of the Monthly Payments due on such Deleted Mortgage Loans in
the month of substitution). The Seller shall pay the Substitution Adjustment
Amount to the RMBS Servicer and the RMBS Servicer shall deposit such
Substitution Adjustment Amount into the Protected Account upon receipt.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 RMBS SERVICER TO ACT AS SERVICER.
(a) The RMBS Servicer shall service, or take such actions as are
necessary to ensure, the servicing and administration of the Mortgage Loans and
any REO Property in accordance with this RMBS Servicing Agreement and its normal
servicing practices, which generally shall conform to the standards of an
institution prudently servicing mortgage loans for its own account and shall
have full authority to do anything it reasonably deems appropriate or desirable
in connection with such servicing and administration. The RMBS Servicer may
perform its responsibilities relating to servicing through other agents or
independent contractors, but shall not thereby be released from any of its
responsibilities for the servicing and administration of the Mortgage Loans. The
authority of the RMBS Servicer, in its capacity as RMBS Servicer, and any
Subservicer acting on its behalf, shall include, without limitation, the power
on behalf of the Issuer and the Indenture Trustee to (i) consult with and advise
any Subservicer regarding administration of a related Mortgage Loan, (ii)
approve any recommendation by a Subservicer to foreclose on a related Mortgage
Loan, (iii) supervise the filing and collection of insurance claims and take or
cause to be taken such actions on behalf of the insured Person thereunder as
shall be reasonably necessary to prevent the denial of coverage thereunder, and
(iv) effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing a related Mortgage Loan, including the employment of
attorneys, the institution of legal proceedings, the collection of deficiency
judgments, the acceptance of compromise proposals, the filing of any claims
under any Primary Insurance Policy, and any other matter pertaining to a
delinquent Mortgage Loan. The authority of the RMBS Servicer shall include, in
addition, the power to (i) execute and deliver customary consents or waivers and
other instruments and documents, (ii) consent to transfer of any related
Mortgaged Property and assumptions of the related Mortgage Notes (in the manner
provided in this RMBS Servicing Agreement) and (iii) collect any Insurance
Proceeds and Liquidation Proceeds. Without limiting the generality of the
foregoing, the RMBS Servicer and any Subservicer acting on its behalf may, and
is hereby authorized, and empowered by the Indenture Trustee, to execute and
deliver any instruments of satisfaction, cancellation, partial or full release,
discharge and all other comparable instruments, with respect to the related
Mortgage Loans, the insurance policies and the accounts related thereto, and the
Mortgaged Properties. The RMBS Servicer may exercise this power in its own name
or in the name of a Subservicer.
In accordance with the standards of the preceding paragraph, the RMBS
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.08, and further as
provided in Section 3.07; provided that the RMBS Servicer shall not be obligated
to make such advance if, in its good faith judgment, the RMBS Servicer
determines that such advance will be a Nonrecoverable Advance.
The relationship of the RMBS Servicer (and of any successor to the RMBS
Servicer under this Agreement) to the RMBS Master Servicer and the other parties
hereto under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent;
provided, however, that the RMBS Servicer is authorized and empowered by the
Indenture Trustee, in its own name or in the name of any Subservicer, when the
RMBS Servicer or such Subservicer, as the case may be, believes it is
appropriate in its best judgment to register any Mortgage Loan on the MERS(R)
System, or cause the removal from the registration of any Mortgage Loan on the
MERS(R) System, to execute and deliver, on behalf of the Indenture Trustee, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Indenture Trustee and its successors and assigns. Any expenses
incurred in connection with the actions described in the preceding sentence
shall be borne by the RMBS Servicer in accordance with Section 3.15, with no
right of reimbursement; provided, that if, as a result of MERS discontinuing or
becoming unable to continue operations in connection with the MERS System, it
becomes necessary to remove any Mortgage Loan from registration on the MERS
System and to arrange for the assignment of the related Mortgages to the
Indenture Trustee, then any related expenses shall be reimbursable to the RMBS
Servicer from the Trust Estate.
(b) With respect to each Mortgage Loan, consistent with the terms of
this RMBS Servicing Agreement, the RMBS Servicer may not consent to the placing
of a lien senior to that of the Mortgage on the related Mortgaged Property.
(c) The RMBS Servicer or the related Subservicer, as the case may be,
shall be entitled to (A) execute assumption agreements, substitution agreements,
and instruments of satisfaction or cancellation or of full release or discharge,
or any other document contemplated by this RMBS Servicing Agreement and other
comparable instruments with respect to the Mortgage Loans and with respect to
the Mortgaged Properties subject to the Mortgages (and the Indenture Trustee
shall promptly execute or cause to be executed any such documents on request of
the RMBS Servicer and prepared by it) and (B) approve the granting of an
easement thereon in favor of another Person, any alteration or demolition of the
related Mortgaged Property or other similar matters, if it has determined,
exercising its good faith business judgment in the same manner as it would if it
were the owner of the related Mortgage Loan, that the security for, and the
timely and full collectability of, such Mortgage Loan would not be adversely
affected thereby. An assumption pursuant to this Section 3.01 is permitted
solely if the creditworthiness of the prospective purchaser of a Mortgaged
Property meets the same or better underwriting guidelines as those which were
applied to the original borrower and the security for such Mortgage Loan is not
impaired by the assumption. Any fee collected by the RMBS Servicer or the
related Subservicer for processing such request will be retained by the RMBS
Servicer or such Subservicer as additional servicing compensation.
(d) Notwithstanding the provisions of Subsection 3.01(a), the RMBS
Servicer shall not take any action inconsistent with the interests of the
Indenture Trustee or with the rights and interests of the RMBS Master Servicer
under this RMBS Servicing Agreement.
(e) The Indenture Trustee shall execute and return to the RMBS Servicer
any limited powers of attorney and other documents in form as provided to the
Indenture Trustee necessary or appropriate to enable the RMBS Servicer to
service and administer the related Mortgage Loans and REO Property.
(f) Notwithstanding any term to the contrary in this RMBS Servicing
Agreement, the RMBS Servicer may not waive, modify or vary any term of any
Mortgage Loan or consent to the postponement of any such term, or in any manner
grant indulgence to any Mortgagor unless the RMBS Servicer has obtained the
prior written consent of the RMBS Master Servicer, which consent shall not be
unreasonably withheld. The RMBS Master Servicer shall use it best efforts to
respond to any such request for consent by the RMBS Servicer pursuant to this
Subsection 3.01(f) within two (2) Business Days of receipt of such request.
Section 3.02 SUBSERVICING AGREEMENTS BETWEEN RMBS SERVICER AND
SUBSERVICERS.
(a) The RMBS Servicer may enter into Subservicing Agreements with
Subservicers for the servicing and administration of the Mortgage Loans and for
the performance of any and all other activities of the RMBS Servicer hereunder.
Each Subservicer shall be either (i) an institution the accounts of which are
insured by the FDIC or (ii) another entity that engages in the business of
originating or servicing mortgage loans comparable to the Mortgage Loans, and in
either case shall be authorized to transact business in the state or states in
which the related Mortgaged Properties it is to service are situated, if and to
the extent required by applicable law to enable the Subservicer to perform its
obligations hereunder and under the related Subservicing Agreement, and in
either case shall be a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Any
Subservicing Agreement entered into by the RMBS Servicer shall include the
provision that such Agreement may be terminated with or without cause and
without the payment of any termination fee by any successor RMBS Servicer
(including, without limitation, the RMBS Master Servicer as successor RMBS
Servicer) under this RMBS Servicing Agreement. In addition, each Subservicing
Agreement shall provide for servicing of the Mortgage Loans consistent with the
terms of this RMBS Servicing Agreement. The RMBS Servicer and the Subservicers
may enter into Subservicing Agreements and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements providing
for, among other things, the delegation by the RMBS Servicer to a Subservicer of
additional duties regarding the administration of the Mortgage Loans; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this RMBS Servicing Agreement, and that no
such amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the Indenture
Trustee and the Noteholders, without the consent of the RMBS Master Servicer.
(b) As part of its servicing activities hereunder, the RMBS Servicer,
for the benefit of the Note Insurer and the Noteholders, shall enforce the
obligations of each Subservicer under the related Subservicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the RMBS Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The RMBS Servicer shall pay the
costs of such enforcement at its own expense, but shall be reimbursed therefor
only (i) from a general recovery resulting from such enforcement only to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loan or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
Section 3.03 SUCCESSOR SUBSERVICERS.
The RMBS Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement subject to the terms of Section 3.02(a) of this RMBS
Servicing Agreement; provided, however, that upon termination, the RMBS Servicer
shall either act as servicer of the related Mortgage Loan or enter into an
appropriate contract with a successor Subservicer and in conformance with the
terms of Section 3.02(a) of this RMBS Servicing Agreement pursuant to which such
successor Subservicer will be bound by all relevant terms of the related
Subservicing Agreement and this RMBS Servicing Agreement pertaining to the
servicing of such Mortgage Loan.
Section 3.04 LIABILITY OF THE RMBS SERVICER.
(a) Notwithstanding any Subservicing Agreement, any of the provisions
of this RMBS Servicing Agreement relating to agreements or arrangements between
the RMBS Servicer and a Subservicer or reference to actions taken through a
Subservicer or otherwise, the RMBS Servicer shall under all circumstances remain
obligated and primarily liable to the Indenture Trustee, the Issuer, the Note
Insurer and the Noteholders for the servicing and administering of the Mortgage
Loans and any REO Property in accordance with this RMBS Servicing Agreement. The
obligations and liability of the RMBS Servicer shall not be diminished by virtue
of Subservicing Agreements or by virtue of indemnification of the RMBS Servicer
by any Subservicer, or any other Person. The obligations and liability of the
RMBS Servicer shall remain of the same nature and under the same terms and
conditions as if the RMBS Servicer alone were servicing and administering the
related Mortgage Loans. The RMBS Servicer shall, however, be entitled to enter
into indemnification agreements with any Subservicer or other Person and nothing
in this RMBS Servicing Agreement shall be deemed to limit or modify such
indemnification. For the purposes of this RMBS Servicing Agreement, the RMBS
Servicer shall be deemed to have received any payment on a Mortgage Loan on the
date the Subservicer received such payment; provided, however, that this
sentence shall not apply to the RMBS Master Servicer as the successor RMBS
Servicer.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
RMBS Servicer alone, and none of the RMBS Master Servicer, the Indenture
Trustee, the Issuer, the Note Insurer or the Noteholders shall be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer except as set forth in Section 3.05.
Section 3.05 ASSUMPTION OR TERMINATION OF SUBSERVICING AGREEMENTS BY
RMBS MASTER SERVICER.
(a) If the RMBS Master Servicer or a successor RMBS Servicer shall
assume the servicing obligations of the RMBS Servicer in accordance with Section
6.02 below, the RMBS Master Servicer or successor RMBS Servicer, to the extent
necessary to permit the RMBS Master Servicer to carry out the provisions of
Section 6.02 with respect to the Mortgage Loans, shall succeed to all of the
rights and obligations of the RMBS Servicer under each of the Subservicing
Agreements, unless such Subservicing Agreements are terminated in accordance
with Section 3.02(a) hereof. If such Subservicing Agreements are not terminated,
the RMBS Master Servicer or its designee as the successor master servicer shall
be deemed to have assumed all of the RMBS Servicer's rights and obligations
therein and to have replaced the RMBS Servicer as a party to such Subservicing
Agreements to the same extent as if such Subservicing Agreements had been
assigned to the RMBS Master Servicer or its designee as a successor master
servicer, except that the RMBS Master Servicer or its designee as a successor
RMBS Servicer shall not be deemed to have assumed any obligations or liabilities
of the RMBS Servicer arising prior to such assumption (other than the obligation
to make Monthly Advances) and the RMBS Servicer shall not thereby be relieved of
any liability or obligations under such Subservicing Agreements arising prior to
such assumption. Nothing in the foregoing shall be deemed to entitle the RMBS
Master Servicer or its designee as a successor RMBS Servicer at any time to
receive any portion of the servicing compensation provided under Section 3.15
except for such portion as the RMBS Servicer would be entitled to receive.
(b) In the event that the RMBS Master Servicer or a successor RMBS
Servicer assumes the servicing obligations of the RMBS Servicer under Section
6.02, upon the reasonable request of the RMBS Master Servicer or such successor
RMBS Servicer, the terminated RMBS Servicer shall at its own expense (or the
expense of the Trust, if the RMBS Servicer fails to do so) deliver to the RMBS
Master Servicer, or to such successor RMBS Servicer photocopies of all
documents, files and records, electronic or otherwise, relating to the
Subservicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable efforts to effect the
orderly and efficient transfer of the Subservicing Agreements, or
responsibilities hereunder to the RMBS Master Servicer, or to such successor
RMBS Servicer or the termination of such Subservicing Agreements in accordance
with Section 3.02(a).
Section 3.06 COLLECTION OF MORTGAGE LOAN PAYMENTS.
(a) The RMBS Servicer will coordinate and monitor remittances by
Subservicers to it with respect to the Mortgage Loans in accordance with this
RMBS Servicing Agreement.
(b) The RMBS Servicer shall make its best reasonable efforts to collect
or cause to be collected all payments required under the terms and provisions of
the Mortgage Loans and shall follow, and use its best reasonable efforts to
cause Subservicers to follow, collection procedures comparable to the collection
procedures of prudent mortgage lenders servicing mortgage loans for their own
account to the extent such procedures shall be consistent with this RMBS
Servicing Agreement. Consistent with the foregoing, the RMBS Servicer or the
related Subservicer may in its discretion (i) waive or permit to be waived any
late payment charge, assumption fee, or any penalty interest in connection with
the prepayment of a Mortgage Loan and (ii) suspend or reduce or permit to be
suspended or reduced regular monthly payments for a period of up to six months,
or arrange or permit an arrangement with a Mortgagor for a scheduled liquidation
of delinquencies; provided, however, that the RMBS Servicer or the related
Subservicer may permit the foregoing only if it believes, in good faith, that
recoveries of Monthly Payments will be maximized; provided further, however,
that Monthly Payments may not be suspended during the twelve months prior to the
final maturity of the Notes. In the event the RMBS Servicer or related
Subservicer shall consent to the deferment of the due dates for payments due on
a Mortgage Note, the RMBS Servicer shall nonetheless make a Monthly Advance or
shall cause the related Subservicer to make a Monthly Advance to the same extent
as if such installment were due, owing and delinquent and had not been deferred
through liquidation of the Mortgaged Property; PROVIDED, HOWEVER, that the
obligation of the RMBS Servicer or the related Subservicer to make a Monthly
Advance shall apply only to the extent that the RMBS Servicer believes, in good
faith, that such advances are not Nonrecoverable Advances.
(c) Within five Business Days after the RMBS Servicer has determined
that all amounts which it expects to recover from or on account of a Mortgage
Loan have been recovered and that no further Liquidation Proceeds will be
received in connection therewith, the RMBS Servicer shall provide to the RMBS
Master Servicer and the Securities Administrator a certificate of a Servicing
Officer that such Mortgage Loan became a Liquidated Mortgage Loan as of the date
of such determination. The RMBS Servicer shall provide to the RMBS Master
Servicer a monthly summary of each Mortgage Loan that became a Liquidated
Mortgage Loan.
(d) The RMBS Servicer shall establish a segregated account in the name
of the Indenture Trustee for the benefit of the Noteholders (the "Protected
Account"), which shall be an Eligible Account, in which the RMBS Servicer shall
deposit or cause to be deposited any amounts representing payments on and any
collections in respect of the Mortgage Loans due subsequent to the Cut-off Date
(other than in respect of the payments referred to in the following paragraph)
within 48 hours following receipt thereof (or otherwise on or prior to the
Closing Date), including the following payments and collections received or made
by it (without duplication):
(i) all payments of principal, including Principal
Prepayments, of or interest on the Mortgage Loans (including advances
by a Subservicer) received by the RMBS Servicer directly from
Mortgagors or from the respective Subservicer;
(ii) the aggregate Repurchase Price of the Mortgage Loans
purchased by the RMBS Servicer pursuant to Section 3.18;
(iii) Net Liquidation Proceeds;
(iv) all proceeds of any Mortgage Loans repurchased by the
Seller pursuant to the Mortgage Loan Purchase Agreement or applicable
Subsequent Mortgage Loan Purchase Agreement and all Substitution
Adjustment Amounts required to be deposited in connection with the
substitution of an Eligible Substitute Mortgage Loan pursuant to the
Mortgage Loan Purchase Agreement or applicable Subsequent Mortgage Loan
Purchase Agreement;
(v) Insurance Proceeds, other than Net Liquidation Proceeds,
resulting from any insurance policy maintained on a Mortgaged Property;
(vi) any Monthly Advance and any Compensating Interest
payments;
(vii) any other amounts received by the RMBS Servicer,
including any fees or penalties not retained by a Subservicer, required
to be deposited in the Protected Account pursuant to this RMBS
Servicing Agreement;
(viii) the amount of any losses incurred by the RMBS Servicer
with respect to the investment of funds in the Protected Account; and
(ix) all prepayment penalties received by the RMBS Servicer
directly from Mortgagors or from the respective Subservicer.
PROVIDED, HOWEVER, that with respect to each Due Period, the RMBS Servicer shall
be permitted to retain from payments in respect of interest on the Mortgage
Loans, the RMBS Servicing Fee for such Due Period. The foregoing requirements
respecting deposits to the Protected Account are exclusive, it being understood
that, without limiting the generality of the foregoing, the RMBS Servicer need
not deposit in the Protected Account fees (including annual fees or assumption
fees) or late charges, payable by Mortgagors, each as further described in
Section 3.15, or amounts received by the RMBS Servicer for the accounts of
Mortgagors for application towards the payment of taxes, insurance premiums,
assessments and similar items, which amounts shall be deposited in the related
Servicing Account pursuant to Section 3.08. In the event any amount not required
to be deposited in the Protected Account is so deposited, the RMBS Servicer may
at any time (prior to being terminated under this Agreement) withdraw such
amount from the Protected Account, any provision herein to the contrary
notwithstanding. The RMBS Servicer shall keep records that accurately reflect
the funds on deposit in the Protected Account that have been identified by it as
being attributable to the Mortgage Loans and shall hold all collections in the
Protected Account for the benefit of the Noteholders. The RMBS Servicer shall be
entitled to retain all Foreclosure Profits and shall not be obligated to deposit
any Foreclosure Profits in the Protected Account.
Funds in the Protected Account may not be invested with, and shall not
be commingled with, the RMBS Servicer's own funds or general assets or with
funds respecting payments on mortgage loans or with any other funds not related
to the Notes. Funds in the Protected Account shall be invested solely in
Eligible Investments, designated in the name of the Indenture Trustee for the
benefit of the Noteholders, which shall mature not later than the Business Day
next preceding the RMBS Servicer Remittance Date next following the date of such
investment and shall not be sold or disposed of prior to maturity. All income
and gain realized from any such investment shall be for the benefit of the RMBS
Servicer or the related Subservicer. The amount of any losses incurred with
respect to any such investments shall be deposited in the Protected Account by
the RMBS Servicer on the Business Day prior to the RMBS Servicer Remittance
Date.
(e) The RMBS Servicer will require each Subservicer to hold all funds
constituting collections on the Mortgage Loans, pending remittance thereof to
the RMBS Servicer, in one or more accounts meeting the requirements of an
Eligible Account, and invested in Eligible Investments, and in the name of the
Indenture Trustee for the benefit of the Noteholders. The related Subservicer
shall segregate and hold all funds collected and received pursuant to each
Mortgage Loan separate and apart from any of its own funds and general assets
and any other funds.
Section 3.07 WITHDRAWALS FROM THE PROTECTED ACCOUNT.
(a) The RMBS Servicer shall, from time to time as provided herein, make
withdrawals from the Protected Account of amounts on deposit therein pursuant to
Section 3.06 that are attributable to the Mortgage Loans for the following
purposes (without duplication):
(i) to remit to the Securities Administrator, by the RMBS
Servicer Remittance Date, all amounts required to be deposited in the
Protected Account as of the close of business on the related
Determination Date;
(ii) to the extent deposited to the Protected Account, to
reimburse itself or the related Subservicer for previously unreimbursed
expenses incurred in maintaining individual insurance policies pursuant
to Sections 3.10 or 3.11, or Liquidation Expenses, paid pursuant to
Section 3.13 or otherwise reimbursable pursuant to the terms of this
RMBS Servicing Agreement, such withdrawal right being limited to
amounts received on the related Mortgage Loans (other than any
Repurchase Price in respect thereto) which represent late recoveries of
the payments for which such advances were made, or from related
Liquidation Proceeds;
(iii) to pay to itself out of each payment received on account
of interest on a Mortgage Loan as contemplated by Section 3.15, an
amount equal to the related RMBS Servicing Fee (to the extent not
retained pursuant to Section 3.06);
(iv) to pay to itself or the Seller, with respect to any
Mortgage Loan or property acquired in respect thereof that has been
purchased or otherwise transferred to the Seller, the RMBS Servicer or
other entity, all amounts received thereon and not required to be
distributed to Noteholders as of the date on which the related Purchase
Price or Repurchase Price is determined;
(v) to reimburse the RMBS Servicer or any Subservicer for any
Monthly Advance of its own funds or any advance of such Subservicer's
own funds, the right of the RMBS Servicer or a Subservicer to
reimbursement pursuant to this subclause (v) being limited to amounts
received (including, for this purpose, the Repurchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage
Loan respecting which such Monthly Advance or advance was made;
(vi) to reimburse the RMBS Servicer or any Subservicer from
Insurance Proceeds, Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the RMBS Servicer or such
Subservicer pursuant to Section 3.13 in good faith in connection with
the restoration of the related Mortgaged Property which was damaged by
the Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(vii) to pay the RMBS Servicer or any Subservicer (payment to
any Subservicer to be subject to prior payment to the RMBS Servicer of
an amount equal to the RMBS Servicing Fee), as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with
the liquidation of any Mortgage Loan, the amount which it or such
Subservicer would have been entitled to receive under subclause (iii)
of this Subsection 3.07(a) as servicing compensation on account of each
defaulted Monthly Payment on such Mortgage Loan if paid in a timely
manner by the related Mortgagor, but only to the extent that the
aggregate of Liquidation Proceeds and Insurance Proceeds with respect
to such Mortgage Loan, after any reimbursement to the RMBS Servicer or
any Subservicer, pursuant to other subclauses of this Subsection
3.07(a), exceeds the outstanding Stated Principal Balance of such
Mortgage Loan plus accrued and unpaid interest thereon at the related
Mortgage Rate less the RMBS Servicing Fee Rate to but not including the
date of payment (in any event, the aggregate amount of servicing
compensation received by a Subservicer and the RMBS Servicer with
respect to any defaulted Monthly Payment shall not exceed the
applicable RMBS Servicing Fee);
(viii) to reimburse the RMBS Servicer or any Subservicer for
any Nonrecoverable Advance previously made, and not otherwise
reimbursed pursuant to this Subsection 3.07(a);
(ix) to withdraw any other amount deposited in the Protected
Account that was not required to be deposited therein pursuant to
Section 3.06;
(x) to reimburse the RMBS Servicer for costs incurred by it
associated with the environmental report specified in Section 3.13(e);
and
(xi) to clear and terminate the Protected Account following a
termination of the Trust pursuant to Section 8.01 of the Trust
Agreement.
In connection with withdrawals pursuant to clauses (ii), (iii), (iv), (v), (vi)
and (vii), the RMBS Servicer's entitlement thereto is limited to collections or
other recoveries on the related Mortgage Loan, and the RMBS Servicer shall keep
and maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for
the purpose of justifying any withdrawal from the Protected Account pursuant to
such clauses. Notwithstanding any other provision of this RMBS Servicing
Agreement, the RMBS Servicer shall be entitled to reimburse itself for any
previously unreimbursed expenses incurred pursuant to Section 3.13 or otherwise
reimbursable expenses incurred pursuant to the terms of this RMBS Servicing
Agreement, but only to the extent of collections or other recoveries on the
related Mortgage Loan.
(b) Notwithstanding the provisions of this Section 3.07, the RMBS
Servicer may, but is not required to, allow the Subservicers to deduct from
amounts received by them or from the related account maintained by a
Subservicer, prior to deposit in the Protected Account, any portion to which
such Subservicers are entitled hereunder as servicing compensation (including
income on Eligible Investments) or reimbursement of any reimbursable Servicing
Advances made by such Subservicers.
(c) The RMBS Servicer shall pay to the Securities Administrator
interest on any payments to the Securities Administrator Collection Account
which were due on a RMBS Servicer Remittance Date but were made after the
related RMBS Servicer Remittance Date at a rate equal to the federal funds rate
from the date due to the date paid, both inclusive. This interest shall be
solely an obligation of the RMBS Servicer and shall not be recoverable by the
Securities Administrator from the Trust or from any other source.
Section 3.08 COLLECTION OF TAXES ASSESSMENTS AND SIMILAR ITEMS;
SERVICING ACCOUNTS.
(a) The RMBS Servicer shall establish and maintain or cause the related
Subservicer to establish and maintain, one or more Servicing Accounts. The RMBS
Servicer or a Subservicer will deposit and retain therein all collections from
the Mortgagors for the payment of taxes, assessments, insurance premiums, or
comparable items as agent of the Mortgagors.
(b) The deposits in the Servicing Accounts shall be held in trust by
the RMBS Servicer or a Subservicer (and its successors and assigns) in the name
of the Indenture Trustee for the benefit of the Noteholders. Such Servicing
Accounts shall be Eligible Accounts and if permitted by applicable law, invested
in Eligible Investments held in trust by the RMBS Servicer or a Subservicer as
described above and maturing, or be subject to redemption or withdrawal, no
later than the date on which such funds are required to be withdrawn, and in no
event later than 45 days after the date of investment; withdrawals of amounts
from the Servicing Accounts may be made only to effect timely payment of taxes,
assessments, insurance premiums, or comparable items, to reimburse the RMBS
Servicer or a Subservicer for any advances made with respect to such items, to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required, to Mortgagors on balances in the Servicing Accounts or to
clear and terminate the Servicing Accounts at or any time after the termination
of this RMBS Servicing Agreement.
Section 3.09 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE MORTGAGE LOANS.
The RMBS Servicer shall provide, and shall cause any Subservicer to
provide, to the RMBS Master Servicer, the Note Insurer, the Owner Trustee and
the Indenture Trustee or its designee access to the documentation regarding the
related Mortgage Loans and REO Property and to the Noteholders, the FDIC, and
the supervisory agents and examiners of the FDIC access to the documentation
regarding the related Mortgage Loans required by applicable regulations, such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the RMBS Servicer or the Subservicers
that are designated by these entities; PROVIDED, HOWEVER, that, unless otherwise
required by law, the RMBS Servicer or the Subservicer shall not be required to
provide access to such documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor; PROVIDED, FURTHER, HOWEVER, that the
RMBS Master Servicer, the Owner Trustee, the Note Insurer and the Indenture
Trustee shall coordinate their requests for such access so as not to impose an
unreasonable burden on, or cause an unreasonable interruption of, the business
of the RMBS Servicer or any Subservicer. The RMBS Servicer and the Subservicers
shall allow representatives of the above entities to photocopy any of the
documentation and shall provide equipment for that purpose at a charge that
covers their own actual out-of-pocket costs.
Section 3.10 MAINTENANCE OF PRIMARY INSURANCE POLICIES; COLLECTION
THEREUNDER.
The RMBS Servicer shall, or shall cause the related Subservicer to,
exercise its best reasonable efforts to maintain and keep in full force and
effect each Primary Insurance Policy by a Qualified Insurer, or other insurer
satisfactory to the Rating Agencies, with respect to each Mortgage Loan as to
which as of the Cut-off Date a Primary Insurance Policy was in effect and the
original principal amount of the related Mortgage Note exceeded 80% of the
Original Value in an amount at least equal to the excess of such original
principal amount over 75% of such Original Value until the principal amount of
any such first lien Mortgage Loan is reduced below 80% of the Original Value or,
based upon a new appraisal, the principal amount of such first lien Mortgage
Loan represents less than 80% of the new appraised value of the related
Mortgaged Property. The RMBS Servicer shall, or shall cause the related
Subservicer to, effect the timely payment of the premium on each Primary
Insurance Policy. The RMBS Servicer and the related Subservicer shall have the
power to substitute for any Primary Insurance Policy another substantially
equivalent policy issued by another Qualified Insurer, PROVIDED, THAT, such
substitution shall be subject to the condition that it will not cause the
ratings on the Notes to be downgraded or withdrawn, as evidenced by a writing
from each Rating Agency.
Section 3.11 MAINTENANCE OF HAZARD INSURANCE AND FIDELITY COVERAGE.
(a) The RMBS Servicer shall maintain and keep, or cause each
Subservicer to maintain and keep, with respect to each Mortgage Loan and REO
Property, in full force and effect hazard insurance (fire insurance with
extended coverage) equal to at least the lesser of the Stated Principal Balance
of the Mortgage Loan (including any cumulative related Negative Amortization) or
the current replacement cost of the related Mortgaged Property, and containing a
standard mortgagee clause, PROVIDED, HOWEVER, that the amount of hazard
insurance may not be less than the amount necessary to prevent loss due to the
application of any co-insurance provision of the related policy. Unless
applicable state law requires a higher deductible, the deductible on such hazard
insurance policy may be no more than $1,000 or 1% of the applicable amount of
coverage, whichever is less. In the case of a condominium unit or a unit in a
planned unit development, the required hazard insurance shall take the form of a
multi-peril policy covering the entire condominium project or planned unit
development, in an amount equal to at least 100% of the insurable value based on
replacement cost.
(b) Any amounts collected by the RMBS Servicer or a Subservicer under
any such hazard insurance policy (other than amounts to be applied to the
restoration or repair of the Mortgaged Property or amounts released to the
Mortgagor in accordance with the RMBS Servicer's or a Subservicer's normal
servicing procedures, the Mortgage Note, the Security Instrument or applicable
law) shall be deposited initially in a Protected Account, for transmittal to the
Securities Administrator Collection Account, subject to withdrawal pursuant to
Section 3.07.
(c) Any cost incurred by a RMBS Servicer or a Subservicer in
maintaining any such hazard insurance policy shall not be added to the amount
owing under the Mortgage Loan for the purpose of calculating monthly
distributions to the RMBS Master Servicer, notwithstanding that the terms of the
Mortgage Loan so permit. Such costs shall be recoverable by the RMBS Servicer or
a Subservicer out of related late payments by the Mortgagor or out of Insurance
Proceeds or Liquidation Proceeds or by the RMBS Servicer from the Repurchase
Price, or as otherwise provided in Section 3.07.
(d) No earthquake or other additional insurance is to be required of
any Mortgagor or maintained on property acquired with respect to a Security
Instrument other than pursuant to such applicable laws and regulations as shall
at any time be in force and shall require such additional insurance. When, at
the time of origination of a Mortgage Loan or at any subsequent time, the
Mortgaged Property is located in a federally designated special flood hazard
area, the RMBS Servicer shall use its best reasonable efforts to cause with
respect to the related Mortgage Loans and each REO Property flood insurance (to
the extent available and in accordance with mortgage servicing industry
practice) to be maintained. Such flood insurance shall cover the related
Mortgaged Property, including all items taken into account in arriving at the
Appraised Value on which the related Mortgage Loan was based, and shall be in an
amount equal to the lesser of (i) the Stated Principal Balance of the related
Mortgage Loan (including any cumulative related Negative Amortization) and (ii)
the minimum amount required under the terms of coverage to compensate for any
damage or loss on a replacement cost basis, but not more than the maximum amount
of such insurance available for the related Mortgaged Property under either the
regular or emergency programs of the National Flood Insurance Program (assuming
that the area in which such Mortgaged Property is located is participating in
such program). Unless applicable state law requires a higher deductible, the
deductible on such flood insurance may not exceed $1,000 or 1% of the applicable
amount of coverage, whichever is less.
(e) If insurance has not been maintained complying with Subsections
3.11 (a) and (d) and there shall have been a loss which would have been covered
by such insurance had it been maintained, the RMBS Servicer shall pay, or cause
the related Subservicer to pay, for any necessary repairs.
(f) The RMBS Servicer shall present, or cause the related Subservicer
to present, claims under any applicable Primary Insurance Policy or the related
hazard insurance or flood insurance policy.
(g) The RMBS Servicer shall obtain and maintain at its own expense and
for the duration of this RMBS Servicing Agreement and shall cause each
Subservicer to obtain and maintain a blanket fidelity bond and an errors and
omissions insurance policy covering such Person's officers, employees and other
persons acting on its behalf in connection with its activities under this RMBS
Servicing Agreement or the related Subservicing Agreement. The amount of
coverage shall be at least equal to the coverage maintained by the RMBS Servicer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac to service loans for it or otherwise in
an amount as is commercially available at a cost that is generally not regarded
as excessive by industry standards. The RMBS Servicer shall promptly notify the
RMBS Master Servicer of any material change in the terms of such bond or policy.
The RMBS Servicer shall provide annually to the RMBS Master Servicer a
certificate of insurance that each such bond and policy are in effect. If any
such bond or policy ceases to be in effect, the RMBS Servicer shall, to the
extent possible, give the RMBS Master Servicer ten days' notice prior to any
such cessation and the RMBS Servicer shall use its reasonable best efforts to
obtain a comparable replacement bond or policy, as the case may be. Any amounts
relating to the Mortgage Loans collected under each such bond or policy shall be
deposited initially in a Protected Account for transmittal to the Securities
Administrator Collection Account, subject to withdrawal pursuant to Section
3.07.
Section 3.12 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) In any case in which the RMBS Servicer is notified by any Mortgagor
or Subservicer that a Mortgaged Property relating to a Mortgage Loan has been or
is about to be conveyed by the Mortgagor, the RMBS Servicer shall enforce, or
shall instruct such Subservicer to enforce, any due-on-sale clause contained in
the related Security Instrument to the extent permitted under the terms of the
related Mortgage Note and by applicable law. The RMBS Servicer or the related
Subservicer may repurchase a Mortgage Loan at the Repurchase Price when the RMBS
Servicer requires acceleration of the Mortgage Loan, but only if the RMBS
Servicer is satisfied, as evidenced by an Officer's Certificate delivered to the
RMBS Master Servicer, that either (i) such Mortgage Loan is in default or
default is reasonably foreseeable or (ii) if such Mortgage Loan is not in
default or default is not reasonably foreseeable, such repurchase will have no
adverse tax consequences for the Trust Estate or any Securityholder. If the RMBS
Servicer reasonably believes that such due-on-sale clause cannot be enforced
under applicable law or if the Mortgage Loan does not contain a due-on-sale
clause, the RMBS Servicer is authorized, and may authorize any Subservicer, to
consent to a conveyance subject to the lien of the Mortgage, and to take or
enter into an assumption agreement from or with the Person to whom such property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the related Mortgage Note and unless prohibited by applicable state
law, such Mortgagor remains liable thereon, on condition, however, that the
related Mortgage Loan shall continue to be covered by a hazard policy and (if so
covered before the RMBS Servicer or the related Subservicer enters into such
agreement) by any Primary Insurance Policy. In connection with any such
assumption, no material term of the related Mortgage Note may be changed. The
RMBS Servicer shall forward to the Indenture Trustee the original copy of such
assumption agreement, which copy shall be added by the Indenture Trustee to the
related Mortgage File and which 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. A portion, equal to up to 2% of the Stated
Principal Balance of the related Mortgage Loan, of any fee or additional
interest collected by the RMBS Servicer or the related Subservicer for
consenting in any such conveyance or entering into any such assumption agreement
may be retained by the RMBS Servicer or related Subservicer as additional
servicing compensation.
(b) Notwithstanding the foregoing paragraph or any other provision of
this RMBS Servicing Agreement, the RMBS Servicer shall not be deemed to be in
default, breach or any other violation of its obligations hereunder by reason of
any assumption of a Mortgage Loan by operation of law or any conveyance by the
Mortgagor of the related Mortgaged Property or assumption of a Mortgage Loan
which the RMBS Servicer reasonably believes it may be restricted by law from
preventing, for any reason whatsoever or if the exercise of such right would
impair or threaten to impair any recovery under any applicable insurance policy.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The RMBS Servicer shall, or shall direct the related Subservicer
to, foreclose upon or otherwise comparably convert the ownership of properties
securing any Mortgage Loans that come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.06, except that the RMBS Servicer shall not, and
shall not direct the related Subservicer to, foreclose upon or otherwise
comparably convert a Mortgaged Property if there is evidence of toxic waste or
other environmental hazards thereon unless the RMBS Servicer follows the
procedures in Subsection (e) below.
(b) The RMBS Servicer shall foreclose or shall direct the related
Subservicer to foreclose on any Mortgaged Property in the name of the Indenture
Trustee for the benefit of the Noteholders.
(c) In connection with such foreclosure or other conversion, the RMBS
Servicer in conjunction with the related Subservicer, if any, shall use its best
reasonable efforts to preserve REO Property and to realize upon defaulted
Mortgage Loans in such manner (including short sales) as to maximize the receipt
of principal and interest by the Noteholders, taking into account, among other
things, the timing of foreclosure and the considerations set forth in Subsection
3.13(d). The foregoing is subject to the proviso that the RMBS Servicer shall
not be required to expend its own funds in connection with any foreclosure or
towards the restoration of any property unless it determines in good faith (i)
that such restoration or foreclosure will increase the proceeds of liquidation
of the Mortgage Loan to the Noteholders after reimbursement to itself for such
expenses and (ii) that such expenses will be recoverable to it either through
Liquidation Proceeds (respecting which it shall have priority for purposes of
reimbursements from the Protected Account pursuant to Section 3.07) or through
Insurance Proceeds (respecting which it shall have similar priority). The RMBS
Servicer shall be responsible for all other costs and expenses incurred by it in
any such proceedings; PROVIDED, HOWEVER, that it shall be entitled to
reimbursement thereof (as well as its normal servicing compensation). Any income
from or other funds (net of any income taxes) generated by REO Property shall be
deemed for purposes of this RMBS Servicing Agreement to be Insurance Proceeds.
(d) The Trust Estate shall not acquire any real property (or any
personal property incident to such real property) except in connection with a
default or reasonably foreseeable default of a Mortgage Loan. In the event that
the Trust Estate acquires any real property (or personal property incident to
such real property) in connection with a default or imminent default of a
Mortgage Loan, such property shall be disposed of by the RMBS Servicer (or its
agent) on behalf of the Trust Estate within two years after its acquisition by
the Trust Estate.
(e) With respect to any Mortgage Loan as to which the RMBS Servicer or
a Subservicer has received notice of, or has actual knowledge of, the presence
of any toxic or hazardous substance on the Mortgaged Property, the RMBS Servicer
shall promptly notify the RMBS Master Servicer and shall act in accordance with
any directions and instructions provided by the RMBS Master Servicer. If the
RMBS Master Servicer has not provided directions and instructions to the RMBS
Servicer in connection with any such Mortgage Loan within 30 days of a request
by the RMBS Servicer for such directions and instructions, then the RMBS
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Estate (other than proceeding against the Mortgaged Property) and
is hereby authorized at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage. The parties hereto
acknowledge that the RMBS Servicer shall not obtain on behalf of the Issuer a
deed as a result or in lieu of foreclosure, and shall not otherwise acquire
possession of or title to, or commence any proceedings to acquire possession of
or title to, or take any other action with respect to, any Mortgaged Property,
if the RMBS Master Servicer, the Owner Trustee or the Indenture Trustee could
reasonably be considered to be a responsible party for any liability arising
from the presence of any toxic or hazardous substance on the Mortgaged Property.
Section 3.14 RMBS INDENTURE TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE
FILES.
(a) Upon payment in full of any Mortgage Loan or the receipt by the
RMBS Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the RMBS Servicer will immediately notify
the Indenture Trustee by a certification signed by a Servicing Officer in the
form of the request for release "Request for Release") attached hereto as
Exhibit B (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Protected Account have been so deposited) and
shall request delivery to the RMBS Servicer or Subservicer, as the case may be,
of the related Mortgage File. Upon receipt of such certification and request,
the Indenture Trustee shall release the related Mortgage File to the RMBS
Servicer or Subservicer and execute and deliver to the RMBS Servicer, without
recourse, representation or warranty the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Security Instrument (furnished by the RMBS Servicer), together
with the Mortgage Note. In connection with the satisfaction of any MOM Loan, the
RMBS Servicer is authorized to cause the removal from the registration on the
MERS(R) System of such Mortgage.
(b) From time to time as is appropriate, for the servicing or
foreclosure of any Mortgage Loan or collection under an insurance policy, the
RMBS Servicer may deliver to the Indenture Trustee a Request for Release signed
by a Servicing Officer on behalf of the RMBS Servicer in substantially the form
attached as Exhibit B hereto. Upon receipt of the Request for Release, the
Indenture Trustee shall deliver the Mortgage File or any document therein to the
RMBS Servicer or Subservicer, as the case may be, as bailee for the Indenture
Trustee.
(c) The RMBS Servicer shall cause each Mortgage File or any document
therein released pursuant to Subsection 3.14(b) to be returned to the Indenture
Trustee when the need therefor no longer exists, and in any event within 21 days
of the RMBS Servicer's receipt thereof, unless the Mortgage Loan has become a
Liquidated Mortgage Loan and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Protected Account or such Mortgage File is being
used to pursue foreclosure or other legal proceedings. Prior to return of a
Mortgage File or any document to the Indenture Trustee, the RMBS Servicer, the
related insurer or Subservicer to whom such file or document was delivered shall
retain such file or document in its respective control as bailee for the
Indenture Trustee unless the Mortgage File or such document has been delivered
to an attorney, or to a public trustee or other public official as required by
law, to initiate or pursue legal action or other proceedings for the foreclosure
of the related Mortgaged Property either judicially or non- judicially, and the
RMBS Servicer has delivered to the Indenture Trustee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. If a Mortgage Loan becomes a Liquidated Mortgage Loan, the RMBS
Servicer shall deliver the Request for Release with respect thereto to the
Indenture Trustee and, upon deposit of the related Liquidation Proceeds in the
Protected Account, as certified to the Indenture Trustee, the Indenture Trustee,
shall deliver the related Mortgage File or any document therein to the RMBS
Servicer or Subservicer, as applicable.
(d) The Indenture Trustee shall execute and deliver to the RMBS
Servicer any court pleadings, requests for trustee's sale or other documents
prepared and delivered to the Indenture Trustee for execution necessary to (i)
the foreclosure or trustee's sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Security Instrument; (iii) obtain a deficiency judgment against the
Mortgagor; or (iv) enforce any other rights or remedies provided by the Mortgage
Note or Security Instrument or otherwise available at law or equity. Together
with such documents or pleadings the RMBS Servicer shall deliver to the
Indenture Trustee a certificate of a Servicing Officer in which it requests the
Indenture Trustee to cause to be executed the pleadings or documents. The
Indenture Trustee and any officer, director, employee or agent of the Indenture
Trustee may rely in good faith on any such document submitted by the RMBS
Servicer. The certificate shall certify and explain the reasons for which the
pleadings or documents are required. It shall further certify that the execution
and delivery of the pleadings or documents will not invalidate any insurance
coverage under the insurance policies or invalidate or otherwise affect the lien
of the Security Instrument, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
Section 3.15 SUBSERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the RMBS Servicer
shall be entitled to receive the RMBS Servicing Fee from full payments of
accrued interest on each Mortgage Loan or as otherwise provided in Section 3.07.
The RMBS Servicer shall be solely responsible for paying any and all fees with
respect to a Subservicer and neither the RMBS Master Servicer nor the Indenture
Trustee shall bear any fees, expenses or other costs directly associated with
any Subservicer.
(b) The RMBS Servicer may retain additional servicing compensation in
the form of a portion of the assumption fees, up to 2% of the Stated Principal
Balance of the related Mortgage Loan, fees for statement of account or payoff,
late payment charges or otherwise, to the extent such fees are collected from
the related Mortgagors or, with respect to a Liquidated Mortgage Loan, to the
extent such fees have accrued. The RMBS Servicer shall be required to pay all
expenses it incurs in connection with servicing activities under this RMBS
Servicing Agreement and shall not be entitled in connection with servicing
activities under this RMBS Servicing Agreement to reimbursement except as
provided in this RMBS Servicing Agreement. Expenses to be paid by the RMBS
Servicer under this Subsection 3.15(b) shall include payment of the expenses of
the accountants retained pursuant to Section 3.17.
Section 3.16 ANNUAL STATEMENTS OF COMPLIANCE.
No later than March 15 of each year, commencing in March 2006, the RMBS
Servicer at its own expense shall deliver to the Depositor and the RMBS Master
Servicer, with a copy to the Securities Administrator, the Note Insurer and the
Rating Agencies, an Officer's Certificate stating, as to the signer thereof,
that (i) a review of activities of the RMBS Servicer during the preceding
calendar year and of performance under this RMBS Servicing Agreement has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the RMBS Servicer has fulfilled all its
obligations under this RMBS Servicing Agreement for such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof including the
steps being taken by the RMBS Servicer to remedy such default; (iii) a review of
activities of each Subservicer during the Subservicer's most recently ended
calendar year on or prior to December 31 of the preceding year and its
performance under its Subservicing Agreement has been made under such officer's
supervision; and (iv) to the best of the Servicing Officer's knowledge, based on
his review and the certification of an officer of the Subservicer (unless the
Servicing Officer has reason to believe that reliance on such certification is
not justified), either each Subservicer has performed and fulfilled its duties,
responsibilities and obligations under this RMBS Servicing Agreement and its
Subservicing Agreement in all material respects throughout the year, or, if
there has been a default in performance or fulfillment of any such duties,
responsibilities or obligations, specifying the nature and status of each such
default known to the Servicing Officer. Copies of such statements shall be
provided by the RMBS Servicer to the Noteholders upon request.
Section 3.17 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
(a) No later than March 15 of each year, commencing in March 2006, the
RMBS Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of American Institute of Certified Public
Accountants and which is Deloitte & Touche LLP (or a successor thereof) to
furnish a statement to the RMBS Servicer, which will be provided to the
Depositor, the Securities Administrator, the RMBS Master Servicer, the Note
Insurer and the Rating Agencies, to the effect that, in connection with the
firm's examination of the RMBS Servicer's financial statements as of the end of
the preceding calendar year, nothing came to their attention that indicated that
the RMBS Servicer was not in compliance with this Agreement, including Sections
3.06, 3.07 and 3.08 except for (i) such exceptions as such firm believes to be
immaterial and (ii) such other exceptions as are set forth in such statement.
(b) No later than March 15 of each year, commencing in March 2006, the
RMBS Servicer, at its expense, shall or shall cause each Subservicer to cause a
nationally recognized firm of independent certified public accountants to
furnish to the RMBS Servicer or such Subservicer a report stating that (i) it
has obtained a letter of representation regarding certain matters from the
management of the RMBS Servicer or such Subservicer which includes an assertion
that the RMBS Servicer or such Subservicer has complied with certain minimum
mortgage loan servicing standards (to the extent applicable to residential
mortgage loans) identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America with
respect to the servicing of first lien conventional single family mortgage loans
during the most recently completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. Immediately upon receipt of such report,
the RMBS Servicer shall or shall cause each Subservicer to furnish a copy of
such report to the RMBS Master Servicer, the Depositor, the Securities
Administrator, the Note Insurer and the Rating Agencies. Any annual independent
public accountants' report furnished pursuant to this Section 3.17 shall be in
such form as shall permit such report to be filed with the Securities and
Exchange Commission as part of the Issuer's annual report on Form 10-K filed
pursuant to the Securities Exchange Act of 1934, as amended, and no such annual
independent public accountant's report shall contain any language restricting,
limiting or prohibiting such use of such report.
Section 3.18 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
The RMBS Servicer may, but is not obligated to, repurchase from the
Issuer any Mortgage Loan delinquent in payment for a period of 90 days or longer
(a "90-Day Delinquent Mortgage Loan") for a price equal to the Repurchase Price.
Any such 90-Day Delinquent Mortgage Loan shall only be eligible for purchase
pursuant to this Section during the period beginning on the first Business Day
of the Calendar Quarter following the Calendar Quarter in which such Mortgage
Loan became a 90-Day Delinquent Mortgage Loan, and ending at the close of
business on the second-to-last Business Day of such following Calendar Quarter.
Such option if not exercised shall not thereafter be reinstated as to any
Mortgage Loan, unless the delinquency is cured and the Mortgage Loan thereafter
again becomes delinquent in payment by 90 days or more in a subsequent Calendar
Quarter. Notwithstanding the foregoing, the Indenture Trustee, whether acting as
Indenture Trustee or in the capacity of successor RMBS Master Servicer, shall
have no obligation hereunder or under any other Basic Document to repurchase any
Mortgage Loan.
Section 3.19 INFORMATION REQUIRED BY THE INTERNAL REVENUE SERVICE
GENERALLY AND REPORTS OF FORECLOSURES AND ABANDONMENTS OF MORTGAGED PROPERTY.
The RMBS Servicer shall prepare and deliver all federal and state
information reports when and as required by all applicable state and federal
income tax laws. In particular, with respect to the requirement under Section
6050J of the Code to the effect that the RMBS Servicer or a Subservicer shall
make reports of foreclosures and abandonments of any mortgaged property for each
year beginning in 2005, the RMBS Servicer or Subservicer shall file reports
relating to each instance occurring during the previous calendar year in which
the RMBS Servicer or such Subservicer (i) acquires an interest in any Mortgaged
Property through foreclosure or other comparable conversion in full or partial
satisfaction of a Mortgage Loan, or (ii) knows or has reason to know that any
Mortgaged Property has been abandoned. The reports from the RMBS Servicer or
Subservicer shall be in form and substance sufficient to meet the reporting
requirements imposed by Section 6050J, Section 6050H (reports relating to
mortgage interest received) and Section 6050P of the Code (reports relating to
cancellation of indebtedness).
Section 3.20 FAIR CREDIT REPORTING ACT.
The RMBS Servicer, in its capacity as RMBS Servicer for each Mortgage
Loan, agrees to fully furnish in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company (three of the credit reporsitories), on a
monthly basis.
Section 3.21 PAYMENT OPTIONS.
The RMBS Servicer shall provide to each Mortgagor for a Group I Loan
all payment options listed in the related Mortgage Note which are available to
the Mortgagor with respect to such payment, notwithstanding any provision in the
related Mortgage Note which explicitly states or implies that providing the
options is optional for the servicer of such Group I Loan or the owner or holder
of the related Mortgage Note.
Section 3.22 WAIVER OF PREPAYMENT CHARGES.
Except as provided below, the RMBS Servicer or any designee of the RMBS
Servicer shall not waive any prepayment charge with respect to any Mortgage
Loan. If the RMBS Servicer or any Subservicer fails to collect a prepayment
charge at the time of the related prepayment of any Mortgage Loan subject to
such prepayment charge, the RMBS Servicer shall deposit to the Protected Account
at the time of payoff an amount equal to the amount of the prepayment charge not
collected. Notwithstanding the above, the RMBS Servicer or any Subservicer may
waive a prepayment charge only if (i) such waiver is standard and customary in
servicing similar mortgage loans to the Mortgage Loans (including any waiver of
a prepayment charge in connection with a refinancing of a Mortgage Loan related
to a default or a reasonably foreseeable default), and (ii) such waiver, in the
reasonable judgment of the RMBS Servicer, would maximize recovery of total
proceeds from the Mortgage Loan, taking into account the value of such
prepayment charge and the related Mortgage Loan. In no event will the RMBS
Servicer waive a prepayment charge in connection with a refinancing of a
Mortgage Loan that is not related to a default or a reasonably foreseeable
default. If a prepayment charge is waived as permitted by meeting the standards
described above, then the RMBS Servicer is required to pay the amount of such
waived prepayment charge, for the benefit of the holders of the Class N Notes,
by depositing such amount into the Protected Account together with and at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Protected Account.
Within 90 days of the earlier of discovery by the RMBS Servicer or
receipt of notice by the RMBS Servicer of the breach of the representation or
covenant of the Servicer set forth in this Section 3.22 which materially and
adversely affects the interests of the Holders of the Class N Notes in any
prepayment charge, the RMBS Servicer shall remedy such breach as follows: if any
of the covenants made by the RMBS Servicer in this Section 3.22 is breached, the
RMBS Servicer must pay the amount of such waived prepayment charge, for the
benefit of the Holders of the Class N Notes, by depositing such amount into the
Protected Account.
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01 REMITTANCE REPORTS.
Not later than the tenth (10th) calendar day, or if such day is not a
Business Day, the first Business Day immediately preceding the tenth calendar
day of the month of the related Remittance Date, the RMBS Servicer shall furnish
to the RMBS Master Servicer, a monthly remittance advice in the format set forth
in Exhibit D attached hereto (or in such other format mutually agreed to by the
RMBS Master Servicer and the RMBS Servicer), with regard to monthly loan
remittance data and a report containing the information required by Exhibit E
(or in such other format mutually agreed to by the RMBS Master Servicer and the
RMBS Servicer) with respect to defaulted mortgage loans, with a trial balance
report attached thereto, and such other loan level information reasonably
available to the RMBS Servicer and requested by the RMBS Master Servicer.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Indenture Trustee pursuant to a deed-in-lieu of foreclosure, the
RMBS Servicer shall submit to the RMBS Master Servicer a liquidation report in
the format set forth in Exhibit F attached hereto (or in such other format
mutually agreed to by the RMBS Servicer and RMBS Master Servicer) with respect
to such Mortgaged Property and all supporting documentation reasonably required
by the Master Servicer. The Master Servicer shall review and approve all
Realized Loss calculations contained in such liquidation report. The RMBS
Servicer shall also provide reports on the status of REO Property containing
such information as the RMBS Master Servicer may reasonably require.
Section 4.02 RESERVED.
Section 4.03 RESERVED.
Section 4.04 ADVANCES.
If any Monthly Payment on a Mortgage Loan that was due on the
immediately preceding Due Date or due during the related Due Period and
delinquent on a Determination Date is delinquent other than as a result of
application of the Relief Act, the RMBS Servicer will deposit in the Protected
Account not later than the related RMBS Servicer Remittance Date an amount equal
to such Monthly Payment net of the related RMBS Servicing Fee for such Mortgage
Loan, except to the extent the RMBS Servicer or the related Subservicer
determines any such advance to be nonrecoverable from Liquidation Proceeds,
Insurance Proceeds or future payments on any Mortgage Loan. Subject to the
foregoing and in the absence of such a determination, the RMBS Servicer shall
continue to make such advances through the date that the related Mortgaged
Property or REO Property has, in the judgment of the RMBS Servicer, been
completely liquidated. No later than the fourth Business Day preceding each
Payment Date, the RMBS Servicer shall present an Officer's Certificate to the
RMBS Master Servicer with respect to the Mortgage Loans, (i) stating that the
RMBS Servicer elects not to make a Monthly Advance in a stated amount and (ii)
detailing the reason it deems the advance to be a Nonrecoverable Advance. The
RMBS Servicer will include in the Remittance Report a list of each Mortgage Loan
for which it does not make a Monthly Advance in accordance with this Section.
Such Monthly Advances may be made in whole or in part from funds in the
Protected Account being held for future distribution or withdrawal on or in
connection with Payment Dates in subsequent months. Any funds being held for
future distribution to Securityholders and so used shall be replaced by the RMBS
Servicer from its own funds by deposit in the Protected Account prior to the
related RMBS Servicer Remittance Date to the extent that funds in the Protected
Account with respect to the related Payment Date shall be less than payments to
Securityholders required to be made on such date.
Section 4.05 COMPENSATING INTEREST PAYMENTS.
The RMBS Servicer shall deposit in the Protected Account not later than
the RMBS Servicer Remittance Date an amount equal to the Compensating Interest
for the related Determination Date. The RMBS Servicer shall not be entitled to
any reimbursement of any Compensating Interest payment.
Section 4.06 ANNUAL CERTIFICATION.
For so long as the Mortgage Loans are being master serviced by the RMBS
Master Servicer, by March 15th 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 the RMBS Servicer shall execute and deliver an
Officer's Certificate to the RMBS Master Servicer and the Depositor for the
benefit of the Depositor and its officers, directors and affiliates in the form
of Exhibit C-1.
ARTICLE V
THE RMBS SERVICER
Section 5.01 LIABILITY OF THE RMBS SERVICER.
The RMBS Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the RMBS
Servicer herein.
Section 5.02 MERGER OR CONSOLIDATION OF OR ASSUMPTION OF THE
OBLIGATIONS OF THE RMBS SERVICER.
Any corporation into which the RMBS Servicer may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the RMBS Servicer shall be a party,
or any corporation succeeding to the business of the RMBS Servicer, shall be the
successor of the RMBS 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 to the RMBS Servicer shall be qualified to sell mortgage loans
to and service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac.
The RMBS Servicer may assign its rights and delegate its duties and
obligations under this RMBS Servicing Agreement; PROVIDED, that the Person
accepting such assignment or delegation shall be a Person which is qualified to
service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac, is reasonably
satisfactory to the RMBS Master Servicer, is willing to service the Mortgage
Loans and executes and delivers to the RMBS Master Servicer, the Issuer and the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the RMBS Master Servicer, which contains an assumption by such Person of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the RMBS Servicer under this RMBS Servicing Agreement;
PROVIDED, FURTHER, that each Rating Agency's rating of the applicable Notes,
without regard to the Note Insurance Policy, in effect immediately prior to such
assignment and delegation will not be qualified, reduced, or withdrawn as a
result of such assignment and delegation (as evidenced by a letter to such
effect from each Rating Agency) or considered to be below investment grade.
Section 5.03 LIMITATION ON LIABILITY OF THE RMBS SERVICER AND OTHERS.
The RMBS Servicer shall immediately notify the RMBS Master Servicer if
a claim is made by a third party with respect to this Agreement or the Mortgage
Loans, assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered in respect of such claim. The RMBS
Servicer agrees that it will not enter into the settlement of any such claim if
such settlement would materially and adversely affect the interests of the
Noteholders. The RMBS Servicer shall be entitled to reimbursement of any such
costs and expenses from funds in the Protected Account, unless such claim
relates to a matter for which the Servicer is required to indemnify the Issuer,
the Indenture Trustee or the RMBS Master Servicer pursuant to Section 5.06.
Neither the RMBS Servicer nor any of the directors or officers or employees or
agents of the RMBS Servicer shall be under any liability to the RMBS Master
Servicer, the Issuer and the Indenture Trustee for any action taken or for
refraining from the taking of any action in good faith pursuant to this RMBS
Servicing Agreement, PROVIDED, HOWEVER, that this provision shall not protect
the RMBS Servicer or any such Person against any liability which would otherwise
be imposed by reason of its willful misfeasance, bad faith or gross negligence
in the performance of its duties hereunder or by reason of its reckless
disregard of its obligations and duties hereunder. The RMBS Servicer and any
director or officer or employee or agent of the RMBS 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 RMBS Servicer's right
to indemnity or reimbursement pursuant to this Section 5.03 shall survive any
resignation or termination of the RMBS Servicer pursuant to Sections 5.04 or
6.01 with respect to any losses, expenses, costs or liabilities arising prior to
such resignation or termination (or arising from events that occurred prior to
such resignation or termination).
Section 5.04 RMBS SERVICER NOT TO RESIGN.
Subject to the provisions of Section 5.02, the RMBS Servicer shall not
resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are no
longer permissible under applicable law (any such determination permitting the
resignation of the RMBS Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the RMBS Master Servicer) or (ii) upon satisfaction of
the following conditions: the RMBS Servicer has proposed a successor servicer to
the RMBS Master Servicer in writing and such proposed successor servicer is
reasonably acceptable to the RMBS Master Servicer; PROVIDED, HOWEVER, that no
such resignation by the RMBS Servicer shall become effective until such
successor servicer shall have assumed the RMBS Servicer's responsibilities and
obligations hereunder or another successor RMBS Servicer has been appointed in
accordance with Section 6.02 and has accepted such appointment. Any such
resignation shall not relieve the RMBS Servicer of responsibility for any of the
obligations specified in Sections 6.01 and 6.02 as obligations that survive the
resignation or termination of the RMBS Servicer. The RMBS Servicer shall have no
claim (whether by subrogation or otherwise) or other action against any
Noteholder for any amounts paid by the RMBS Servicer pursuant to any provision
of this RMBS Servicing Agreement.
Notwithstanding anything to the contrary herein, the RMBS Servicer may
pledge or assign as collateral all its rights, title and interest under this
RMBS Servicing Agreement to a lender (the "RMBS Servicing Rights Pledgee"),
provided, that:
(1) upon a Servicing Default and receipt of a notice of termination by
the RMBS Servicer, the RMBS Servicing Rights Pledgee may direct the RMBS
Servicer or its designee to appoint a successor RMBS Servicer pursuant to the
provisions, and subject to the conditions, set forth in Section 6.02 regarding
the appointment of a successor RMBS Servicer;
(2) the RMBS Servicing Rights Pledgee's rights are subject to this RMBS
Servicing Agreement; and
(3) the RMBS Servicer shall remain subject to termination as RMBS
Servicer under this RMBS Servicing Agreement pursuant to the terms hereof.
Section 5.05 DELEGATION OF DUTIES.
In the ordinary course of business, the RMBS Servicer at any time may
delegate any of its duties hereunder to any Person, including any of its
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those with which the RMBS Servicer complies pursuant to Section
3.01. Such delegation shall not relieve the RMBS Servicer of its liabilities and
responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Section 5.04.
Section 5.06 INDEMNIFICATION.
(a) The RMBS Servicer agrees to indemnify each of the RMBS Master
Servicer, the Issuer and the Indenture Trustee for and to hold each of the RMBS
Master Servicer, the Issuer and the Indenture Trustee harmless against, any
claim, tax, penalty, loss, liability or expense of any kind whatsoever, incurred
without negligence or willful misconduct on its part, arising out of, or in
connection with, the failure by the RMBS Servicer to perform its duties in
compliance with this RMBS Servicing Agreement or incurred by reason of the RMBS
Servicer's willful misfeasance, bad faith, gross negligence or reckless
disregard of the performance of its duties hereunder. In addition to the
indemnification set forth in the previous sentence, the RMBS Servicer shall
indemnify and hold each of the RMBS Master Servicer, the Issuer and the
Indenture Trustee harmless from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses resulting from or related to any act or omission
to act of any prior servicer, owner or originator of a Mortgage Loan or
Mortgaged Property (or any other Person) prior to the transfer of servicing to
the RMBS Master Servicer in accordance with Section 6.02 hereunder, provided
that:
(i) with respect to any such claim, the RMBS Master Servicer,
the Issuer or the Indenture Trustee, as applicable, shall have given
the RMBS Servicer written notice thereof promptly after the RMBS Master
Servicer, the Issuer or the Indenture Trustee, as applicable, shall
have actual knowledge thereof, it being understood that failure to give
such notice shall not relieve the RMBS Servicer of its indemnification
obligations hereunder;
(ii) while maintaining control over its own defense, the RMBS
Master Servicer, the Issuer or the Indenture Trustee, as applicable,
shall cooperate and consult fully with the RMBS Servicer in preparing
such defense; and
(iii) notwithstanding anything in this RMBS Servicing
Agreement to the contrary, the RMBS Servicer shall not be liable for
settlement of any claim by the RMBS Master Servicer, the Issuer or the
Indenture Trustee, as applicable, entered into without the prior
consent of the RMBS Servicer, which consent shall not be unreasonably
withheld.
(b) No termination of this RMBS Servicing Agreement or the resignation
or removal of the RMBS Servicer shall affect the obligations created by this
Section 5.06 of the RMBS Servicer to indemnify the RMBS Master Servicer, the
Issuer and the Indenture Trustee under the conditions and to the extent set
forth herein. This section shall survive the termination of this RMBS Servicing
Agreement and the resignation or removal of the RMBS Servicer and the Indenture
Trustee. Any amounts to be paid by the RMBS Servicer pursuant to this Subsection
may not be paid from the Trust Estate.
Section 5.07 DUTIES OF THE RMBS SERVICER WITH RESPECT TO THE INDENTURE.
(a) The RMBS Servicer shall take all appropriate action that is the
duty of the Issuer to take with respect to the following matters under the
Indenture (references are to sections of the Indenture):
(i) causing the preparation of the Notes (for execution by the
Owner Trustee) upon their initial issuance and causing the preparation
of an Issuer Request (for execution by the Owner Trustee) for delivery
to the Indenture Trustee regarding the authentication of the Notes
(Section 2.02);
(ii) causing the preparation of an Issuer Request and
Officer's Certificate (and executing the same on behalf of the Issuer)
and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral (Section
8.05);
(iii) causing the preparation of Issuer Requests (and
executing the same on behalf of the Issuer) and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures;
(iv) causing the preparation and obtaining or filing of the
instruments, opinions and certificates and other documents required for
the release of collateral (Sections 8.05 and 10.01);
(v) the delivery of notice to the Indenture Trustee and the
Rating Agencies of each Event of Default under the Indenture and under
the Trust Agreement (Sections 3.24 and 5.01);
(vi) the annual delivery of Opinions of Counsel, in accordance
with Section 3.07 of the Indenture, as to the Trust Estate, and the
annual delivery and execution of the Officers' Certificate (Section
3.10);
(vii) causing the preparation and execution of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto with respect to any request by
the Issuer to the Indenture Trustee to take any action under the
Indenture (Sections 4.10 and 10.01);
(viii) obtaining and preserving the Issuer's qualification to
do business in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the RMBS Mortgage Loans and each other instrument
and agreement included in the Trust Estate (Section 3.04).
(b) In addition to the duties of the RMBS Servicer set forth above, the
RMBS Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Basic Documents, and at the
request of the Owner Trustee or the Indenture Trustee (who is in no event
obligated to make such requests or direction) shall take all appropriate action
that it is the duty of the Issuer to take pursuant to the Basic Documents. In
accordance with the directions of the Owner Trustee or Indenture Trustee (who is
in no event obligated to make such requests or direction), the RMBS Servicer
shall administer, perform or supervise the performance of such other activities
in connection with the Collateral (including the Basic Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee or the Indenture Trustee (who is in no event obligated to make
such requests or direction) and are reasonably within the capability of the RMBS
Servicer.
Section 5.08 PATRIOT ACT.
In order to comply with its duties under the USA Patriot Act of 2001,
the Indenture Trustee shall obtain and verify certain information and
documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying information.
ARTICLE VI
DEFAULT
Section 6.01 SERVICING DEFAULT.
If any one of the following events (each, a "Servicing Default") shall
occur and be continuing:
(i) Any failure by the RMBS Servicer to deposit in the
Protected Account or Securities Administrator Collection Account any
deposit required to be made under the terms of this RMBS Servicing
Agreement, including any Monthly Advances and Compensating Interest
(other than Servicing Advances), which continues unremedied for a
period of one (1) Business Day after the date upon which written notice
of such failure shall have been given to the RMBS Servicer by the RMBS
Master Servicer; or
(ii) Failure on the part of the RMBS Servicer duly to observe
or perform in any material respect any representation or warranty of
the RMBS Servicer or any other covenants or agreements of the RMBS
Servicer (including the making of Servicing Advances) set forth in this
RMBS Servicing Agreement, which failure, in each case, materially and
adversely affects the interests of the Noteholders and which continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, and stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the RMBS Servicer by the RMBS Master Servicer; or
(iii) The entry against the RMBS Servicer of a decree or order
by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(iv) The RMBS Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator, receiver, liquidator or
similar person in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the
RMBS Servicer or of or relating to all or substantially all of its
property, or a decree or order of a court, agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the RMBS Servicer and such decree or order
shall have remained in force undischarged, unbonded or unstayed for a
period of 60 days; or the RMBS Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, and in every such case, so long as a Servicing Default shall not have been
remedied by the RMBS Servicer, the RMBS Master Servicer may, by notice then
given to the RMBS Servicer, terminate all of the rights and obligations of the
RMBS Servicer as servicer under this RMBS Servicing Agreement other than its
right to receive servicing compensation and expenses for servicing the Mortgage
Loans hereunder during any period prior to the date of such termination and the
RMBS Master Servicer may exercise any and all other remedies available at law or
equity. Any such notice to the RMBS Servicer shall also be given to each Rating
Agency, the Company and the Issuer. On or after the receipt by the RMBS Servicer
of such written notice, all authority and power of the RMBS Servicer under this
RMBS Servicing Agreement, whether with respect to the Notes or the Mortgage
Loans or otherwise, shall pass to and be vested in the RMBS Master Servicer,
pursuant to and under this Section 6.01; and, without limitation, the RMBS
Master Servicer is hereby authorized and empowered to execute and deliver, on
behalf of the RMBS Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents, or otherwise. Notwithstanding the foregoing, the
parties hereto and the Securityholders by their acceptance of any Security,
acknowledge and agree that there will be a period of transition before the
actual servicing functions can be fully transferred to the RMBS Master Servicer,
as successor RMBS Servicer, or to a successor RMBS Servicer appointed by the
RMBS Master Servicer pursuant to the provisions hereof, provided, that the RMBS
Master Servicer shall use its reasonable best efforts to succeed to the actual
servicing functions or find a successor RMBS Servicer as soon as possible but no
later than 100 days after such termination; and provided further that the RMBS
Master Servicer shall continue to have the right to appoint a successor RMBS
Servicer after such 100-day period in accordance with Section 6.02. The RMBS
Servicer agrees to cooperate with the RMBS Master Servicer in effecting the
termination of the responsibilities and rights of the RMBS Servicer hereunder,
including, without limitation, the transfer to the RMBS Master Servicer or the
successor RMBS Servicer for administration by it of (i) the property and amounts
which are then or should be part of the Trust Estate or which thereafter become
part of the Trust Estate; (ii) originals or copies of all documents of the RMBS
Servicer reasonably requested by the RMBS Master Servicer to enable it to assume
the RMBS Servicer's duties thereunder and under the Subservicing Agreements;
(iii) unless terminated in accordance with this RMBS Servicing Agreement, the
rights and obligations of the RMBS Servicer under the Subservicing Agreements
with respect to the Mortgage Loans; (iv) all cash amounts which shall at the
time be deposited by the RMBS Servicer or should have been deposited to the
Protected Account, the related Servicing Accounts or the Securities
Administrator Collection Account or thereafter be received with respect to the
Mortgage Loans; and (v) all costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the RMBS Master Servicer or any
successor RMBS Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the RMBS Master Servicer or successor RMBS
Servicer to service the Mortgage Loans properly and effectively. All reasonable
costs and expenses (including, but not limited to, attorneys' fees and
disbursements) incurred by the RMBS Master Servicer or a successor RMBS Servicer
in connection with its succession as RMBS Servicer, or the Indenture Trustee in
accordance with such succession (as provided below), including amending this
RMBS Servicing Agreement to reflect such succession as RMBS Servicer pursuant to
this Section 6.01 shall be paid by the predecessor RMBS Servicer (or if the
predecessor RMBS Servicer is the RMBS Master Servicer, the terminated RMBS
Servicer) upon presentation of reasonable documentation of such costs and
expenses. In connection therewith, the Indenture Trustee shall establish a
reserve fund (the "Reserve Fund") into which each of the HELOC Servicer and the
RMBS Servicer shall deposit on the Closing Date the amount of $423,415 each (for
a total of $846,830) to be held in trust for the benefit of each of the RMBS
Master Servicer, the HELOC Back-Up Servicer and the Indenture Trustee. Funds on
deposit in the Reserve Fund shall be used to pay the costs and expenses incurred
by the RMBS Master Servicer in connection with its succession as RMBS Servicer
in the event of a Servicing Default by the RMBS Servicer pursuant to this
Section 6.01, or to pay the costs and expenses incurred by the HELOC Back-Up
Servicer in connection with its succession as HELOC Servicer in the event of a
Servicing Default by the HELOC Servicer pursuant to Section 6.01 of the HELOC
Servicing Agreement, and to pay the costs and expenses incurred by the Indenture
Trustee in connection with any such succession by the HELOC Back-Up Servicer or
RMBS Master Servicer, respectively, to the HELOC Servicer or RMBS Servicer. In
addition, at the end of each Calendar Quarter, the Indenture Trustee shall
release from the Reserve Fund and pay to the Seller an amount equal to $30 times
each Mortgage Loan which was released from the Trust Estate during such Calendar
Quarter as calculated by the Securities Administrator and provided to the
Indenture Trustee. In the event that amounts contained in the Reserve Fund are
insufficient to reimburse the HELOC Back-Up Servicer or the RMBS Master Servicer
in accordance with this Section 6.01, then any remaining amounts required to be
paid to the RMBS Master Servicer or the HELOC Back-Up Servicer in accordance
with this Section 6.01 shall be payable from the Trust Estate. The Reserve Fund
shall no longer be maintained if the RMBS Servicer is rated "SQ2" or better by
Moody's on any date as certified by the RMBS Servicer to the Indenture Trustee,
the RMBS Master Servicer, the HELOC Back-Up Servicer and the Securities
Administrator. The costs and expenses incurred by the Indenture Trustee in
connection with any such succession by the HELOC Back-Up Servicer or the RMBS
Master Servicer, respectively, to the HELOC Servicer or RMBS Servicer, as
applicable, shall be reimbursed in the first instance from the Reserve Fund. In
the event that amounts contained in the Reserve Fund are insufficient to
reimburse the Indenture Trustee in accordance with this Section 6.01, then any
remaining amounts required to be paid to the Indenture Trustee in accordance
with this Section 6.01 shall be payable by the terminated HELOC Servicer or
terminated RMBS Servicer, as applicable, and in the event the Indenture Trustee
is unable to collect any such amounts from the terminated HELOC Servicer or
terminated RMBS Servicer, as applicable, then any remaining amounts shall be
payable from the Trust Estate.
Amounts on deposit in the Reserve Fund will be invested by the
Indenture Trustee in Eligible Investments at the direction of the Seller, and
investment income thereon will be for the benefit of the Seller. The Indenture
Trustee shall notify the Seller of the amount of any losses incurred with
respect to any such investments. The amount of any such losses shall be
deposited in the Reserve Account by the Seller out of its own funds immediately
as realized. On each Payment Date, the Indenture Trustee will withdraw from the
Reserve Fund any investment income on amounts on deposit in the Reserve Fund and
make payment to the Seller.
The Trustee or its affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder, servicing
agent, custodian or sub-custodian with respect to certain of the Eligible
Investments, (ii) using affiliates to effect transactions in certain Eligible
Investments and (iii) effecting transactions in certain Eligible Investments.
Such compensation is not payable or reimbursable under this Agreement. The
Trustee shall have no obligation to invest or reinvest any funds held in the
Reserve Fund in the absence of timely written direction and shall not be liable
for the selection of investments or for investment losses incurred thereon.
Notwithstanding any termination of the activities of the RMBS Servicer
hereunder, the RMBS Servicer shall be entitled to receive, out of any late
collection of a payment on a Mortgage Loan which was due prior to the notice
terminating the RMBS Servicer's rights and obligations hereunder and received
after such notice, that portion to which the RMBS Servicer would have been
entitled pursuant to Sections 3.07 and 3.15 as well as its RMBS Servicing Fee in
respect thereof, and any other amounts payable to the RMBS Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder.
The RMBS Servicer shall immediately notify the RMBS Master Servicer in
writing of the occurrence of any Servicing Default or any RMBS Servicing Trigger
Event.
In addition, upon the occurrence of any RMBS Servicing Trigger Event,
the RMBS Master Servicer shall terminate the rights and responsibilities of the
RMBS Servicer hereunder and shall appoint a successor RMBS Servicer in
accordance with the provisions of this Section 6.02; provided, however, that the
foregoing provision shall not apply in the event that the RMBS Servicer is rated
"SQ2" or better by Moody's on any date. In the event of the appointment of the
RMBS Master Servicer or other successor as successor RMBS Servicer in accordance
with Section 6.02 hereof, the RMBS Servicing Trigger Event shall not apply.
Section 6.02 RMBS MASTER SERVICER TO ACT; APPOINTMENT OF SUCCESSOR.
(a) Within 100 days of the time the RMBS Servicer sends a notice
pursuant to clause (i) of Section 5.04, the RMBS Master Servicer, or other
successor appointed in accordance with this Section 6.02, shall be the successor
in all respects to the RMBS Servicer in its capacity as RMBS Servicer under this
RMBS Servicing Agreement and the transactions set forth or provided for herein
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the RMBS Servicer by the terms and provisions hereof,
including but not limited to the provisions of Article V. Nothing in this RMBS
Servicing Agreement shall be construed to permit or require the RMBS Master
Servicer or any other successor RMBS Servicer to (i) be responsible or
accountable for any act or omission of the predecessor RMBS Servicer, (ii)
require or obligate the RMBS Master Servicer, in its capacity as successor RMBS
Servicer, to purchase, repurchase or substitute any Mortgage Loan, (iii) fund
any losses on any Eligible Investment directed by any other RMBS Servicer, or
(iv) be responsible for the representations and warranties of the RMBS Servicer,
except as provided herein; provided, however, that the RMBS Master Servicer, as
successor RMBS Servicer, shall be required to make Monthly Advances to the
extent that the RMBS Servicer failed to make such Monthly Advances, to the
extent such Monthly Advance is not determined by the RMBS Master Servicer to be
a Nonrecoverable Advance. As compensation therefor, the RMBS Master Servicer
shall be entitled to such compensation as the RMBS Servicer would have been
entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the RMBS Master Servicer is unwilling to act
as successor RMBS Servicer, or (ii) if the RMBS Master Servicer is legally
unable so to act, the RMBS Master Servicer may (in the situation described in
clause (i)) or shall (in the situation described in clause (ii)) appoint or
petition a court of competent jurisdiction to appoint any established housing
and home finance institution, bank or other mortgage loan servicer having a net
worth of not less than $10,000,000 as the successor to the RMBS Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the RMBS Servicer hereunder; provided that the appointment of
any such successor RMBS Servicer will not result in the qualification, reduction
or withdrawal of the ratings assigned to the Notes by the Rating Agencies (as
evidenced by a letter to such effect delivered by the Rating Agencies). Pending
appointment of a successor to the RMBS Servicer hereunder, unless the RMBS
Master Servicer is prohibited by law from so acting or is unwilling to act as
such, the RMBS Master Servicer shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the successor
shall be entitled to receive compensation out of payments on Mortgage Loans in
an amount equal to the compensation which the RMBS Servicer would otherwise have
received pursuant to Section 3.15 (or such lesser compensation as the RMBS
Master Servicer and such successor shall agree). The appointment of a successor
RMBS Servicer shall not affect any liability of the predecessor RMBS Servicer
which may have arisen under this RMBS Servicing Agreement prior to its
termination as RMBS Servicer (including, without limitation, the obligation to
pay any deductible under an insurance policy pursuant to Section 3.11 or to
indemnify the RMBS Master Servicer pursuant to Section 5.06), nor shall any
successor RMBS Servicer be liable for any acts or omissions of the predecessor
RMBS Servicer or for any breach by such RMBS Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The RMBS Master Servicer and such successor shall take such action,
consistent with this RMBS Servicing Agreement, as shall be necessary to
effectuate any such succession.
In connection with the termination or resignation of the RMBS Servicer
hereunder, either (i) the successor RMBS Servicer, including the RMBS Master
Servicer if the RMBS Master Servicer is acting as successor RMBS Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor RMBS Servicer shall cooperate with the
successor RMBS Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor RMBS Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor RMBS Servicer shall cooperate
with the successor RMBS Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Indenture Trustee and to execute and deliver such other notices, documents
and other instruments as may be necessary or desirable to effect a transfer of
such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to
the successor RMBS Servicer. The terminated RMBS Servicer shall file or cause to
be filed any such assignment in the appropriate recording office. The terminated
RMBS Servicer shall bear any and all fees of MERS, costs of preparing any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this Section 6.02. To the extent these fees
and costs are not paid by the terminated RMBS Servicer and are incurred by any
successor RMBS Servicer, such fees and costs will be reimbursable to the
successor RMBS Servicer by the Trust. The successor RMBS Servicer shall cause
such assignment to be delivered to the Indenture Trustee promptly upon receipt
of the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
(b) Any successor, including the RMBS Master Servicer, to the RMBS
Servicer as servicer shall during the term of its service as servicer (i)
continue to service and administer the Mortgage Loans for the benefit of the
Securityholders, (ii) maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as RMBS
Servicer hereunder and a fidelity bond in respect of its officers, employees and
agents to the same extent as the RMBS Servicer is so required pursuant to
Section 3.11(g).
(c) Any successor RMBS Servicer, including the RMBS Master Servicer,
shall not be deemed to be in default or to have breached its duties hereunder if
the predecessor RMBS Servicer shall fail to deliver any required deposit to the
Protected Account or a Servicing Account or otherwise cooperate with any
required servicing transfer or succession hereunder.
(d) Notwithstanding anything else herein to the contrary, in no event
shall the RMBS Master Servicer be liable for any servicing fee or any
differential in the amount of the servicing fee paid hereunder and the amount
necessary to induce any successor RMBS Servicer to act as a successor RMBS
Servicer under this RMBS Servicing Agreement and the transactions set forth or
provided for herein.
(e) Notwithstanding any provision in this RMBS Servicing Agreement to
the contrary, for a period of 10 days following the date on which the RMBS
Servicer shall have received a notice of termination pursuant to Section 6.01 of
this RMBS Servicing Agreement, the RMBS Servicer or its designee may appoint a
successor RMBS Servicer that satisfies the eligibility criteria of a successor
RMBS Servicer set forth in this Section 6.02, which appointment shall be subject
to the consent of the Depositor, the Seller, the Master Servicer, and the
Indenture Trustee, which consent shall not be unreasonably withheld or delayed;
provided that such successor RMBS Servicer agrees to fully effect the servicing
transfer within 100 days following the termination of the RMBS Servicer and to
make all Monthly Advances that would otherwise be made by the RMBS Master
Servicer under this Section 6.02 as of the date of such appointment, and to
reimburse the RMBS Master Servicer for any unreimbursed Monthly Advances it has
made and any reimbursable expenses that it has incurred in connection with this
Section 6.02. Any proceeds received in connection with the appointment of such
successor RMBS Servicer shall be the property of the RMBS Servicer or its
designee. This 10-day period shall terminate immediately (i) at the close of
business on the second Business Day of such 10-day period if (A) the RMBS
Servicer was terminated because of a Servicing Default described in Section
6.01(i) for failing to make a required Monthly Advance, and (B) the RMBS
Servicer shall have failed to make (or cause to be made) such Monthly Advance,
or shall fail to reimburse (or cause to be reimbursed) the RMBS Master Servicer
for a Monthly Advance made by the RMBS Master Servicer, by the close of business
on such second Business Day, or (ii) at the close of business on the second
Business Day following the date (if any) during such 10-day period on which a
Monthly Advance is due to be made, if the RMBS Servicer shall have failed to
make (or caused to be made) such Monthly Advance, or the RMBS Servicer shall
have failed to reimburse (or cause to be reimbursed) the RMBS Master Servicer
for such Monthly Advance, by the close of business on such second Business Day.
Notwithstanding anything to the contrary above, the RMBS Servicer shall perform
all of the obligations of the RMBS Servicer in this RMBS Servicing Agreement
until a successor RMBS Servicer is appointed and such appointment is effective.
Section 6.03 RESERVED.
Section 6.04 WAIVER OF DEFAULTS.
The RMBS Master Servicer may waive any default by the RMBS Servicer in
the performance of its obligations hereunder and the consequences thereof,
except a default in the making of or the causing to be made any required
distribution. Upon any such waiver of a past default, such default shall be
deemed to cease to exist, and any Servicing Default arising therefrom shall be
deemed to have been timely remedied for every purpose of this RMBS Servicing
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT.
This RMBS Servicing Agreement may be amended from time to time by the
parties hereto, provided that any amendment be accompanied by a letter from the
Rating Agencies that the amendment will not result in the downgrading,
qualification or withdrawal of the rating then assigned to the Notes.
Section 7.02 GOVERNING LAW.
THIS RMBS SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.03 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if when delivered to:
(a) in the case of the RMBS Master Servicer and the Securities
Administrator:
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx , Xxxxxxxx 00000
(or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 21045) (Attention: Corporate Trust Services - AHMIT
2005-2), facsimile no.: (000) 000-0000, or such other address as may
hereafter be furnished to the other parties hereto in writing;)
(b) in the case of the RMBS Servicer:
American Home Mortgage Servicing, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
(c) in the case of Rating Agencies:
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx - 41st Floor
New York, New York 10041
Attention: Asset Backed Surveillance Group
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
(d) in the case of the Owner Trustee, the Corporate Trust Office: M&T
Trust Company of Delaware
(Monday & Friday Address)
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: [____________]
(Tuesday - Thursday Address)
00 Xxxxx Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: [___________]
(e) in the case of the Issuer, to American Home Mortgage Investment
Trust 2005-2:
c/o American Home Mortgage Securities LLC
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
(f) in the case of the Indenture Trustee: its Corporate Trust Office
(g) in the case of the Note Insurer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Consumer Asset-Backed Securities Group
Attention: General Counsel
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this RMBS Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the RMBS Master Servicer to the Rating Agencies shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the RMBS Master Servicer shall have no liability for failure to deliver such
notice or document to the Rating Agencies.
The RMBS Servicer shall designate a Person who shall be available to
the Note Insurer to provide reasonable access to information regarding the
Mortgage Loans.
Section 7.04 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms of
this RMBS Servicing Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this RMBS
Servicing Agreement and shall in no way affect the validity or enforceability of
the other provisions of this RMBS Servicing Agreement or of the Notes or the
rights of the Noteholders thereof.
Section 7.05 THIRD-PARTY BENEFICIARIES.
This RMBS Servicing Agreement will inure to the benefit of and be
binding upon the parties hereto, the Noteholders, the Note Insurer, the Owner
Trustee, the Securities Administrator and their respective successors and
permitted assigns. Except as otherwise provided in this RMBS Servicing
Agreement, no other Person will have any right or obligation hereunder.
Section 7.06 COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 7.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 7.08 TERMINATION.
The respective obligations and responsibilities of the RMBS Servicer
and the RMBS Master Servicer created hereby shall terminate upon the
satisfaction and discharge of the Indenture pursuant to Section 4.10 thereof.
Section 7.09 NO PETITION.
The RMBS Servicer, by entering into this RMBS Servicing Agreement,
hereby covenants and agrees that it will not at any time institute against the
Issuer, or join in any institution against the Issuer, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations of the Issuer. This section shall survive the
satisfaction and discharge of the Indenture by one year.
Section 7.10 NO RECOURSE.
The RMBS Servicer acknowledges that no recourse may be had against the
Issuer, except as may be expressly set forth in this RMBS Servicing Agreement.
Section 7.11 CONSENT TO JURISDICTION.
The parties to this RMBS Servicing Agreement each hereby irrevocably
submits to the nonexclusive jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan in The City of New York in any action or
proceeding arising out of or relating to this RMBS Servicing Agreement or the
transactions contemplated hereby, and all such parties hereby irrevocably agree
that all claims in respect of such action or proceeding may be heard and
determined in such New York State or federal court and hereby irrevocably waive,
to the fullest extent that they may legally do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS RMBS SERVICING AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the RMBS Master Servicer, the Issuer, the Seller,
the Indenture Trustee and the RMBS Servicer have caused this RMBS Servicing
Agreement to be duly executed by their respective officers or representatives
all as of the day and year first above written.
XXXXX FARGO BANK, N.A.
as RMBS Master Servicer
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AMERICAN HOME MORTGAGE SERVICING, INC.
as RMBS SERVICER
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: EVP, General Counsel and
Secretary
AMERICAN HOME MORTGAGE INVESTMENT
TRUST 2005-2, as Issuer
M&T TRUST COMPANY OF DELAWARE, not in
its individual capacity, but solely
as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as SELLER
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: EVP, General Counsel and
Secretary
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Filed Manually)
EXHIBIT B
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE:REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
RMBS Servicing Agreement ("RMBS Servicing Agreement") Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one)Mortgage Loan Prepaid in Full
Other
Mortgage Loan Repurchased
Please deliver the Mortgage File to
--------------------------------------------
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been deposited in the
Protected Account as provided in the RMBS Servicing Agreement."
--------------------------
[Name of RMBS Servicer]
Authorized Signature
******************************************************************************
TO INDENTURE TRUSTEE: Please acknowledge this request (if we so request), and
check off documents being enclosed with a copy of this form. You should retain
this form for your files in accordance with the terms of the RMBS Servicing
Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
--------------------------
Name
--------------------------
Title
--------------------------
Date
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED BY THE RMBS SERVICER
Re: American Home Mortgage Investment Trust 2005-2
Mortgage-Backed Notes, Series 2005-2
I, [identify the certifying individual], certify that:
l. Based on my knowledge, the information in the Annual
Statement of Compliance, the Annual Independent Public Accountants' Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the RMBS Master
Servicer taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
as of the date of this certification;
2. Based on my knowledge, the servicing information required
to be provided to the RMBS Master Servicer by the RMBS Servicer under the RMBS
Servicing Agreement has been provided to the RMBS Master Servicer;
3. I am responsible for reviewing the activities performed by
the RMBS Servicer under the RMBS Servicing Agreement and based upon the review
required under the RMBS Servicing Agreement, and except as disclosed in the
report, the RMBS Servicer has fulfilled its obligations under the RMBS Servicing
Agreement; and
4. I have disclosed to the Registrant's certified public
accounts all significant deficiencies relating to the RMBS 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 RMBS Servicing Agreement.
Capitalized terms used but not defined herein have the
meanings ascribed to them in Appendix A to the Indenture, dated as of June 22,
2005, among American Home Mortgage Investment Trust 2005-2, as issuer, Xxxxx
Fargo Bank, N.A. as securities administrator and Deutsche Bank National Trust
Company, as indenture trustee.
AMERICAN HOME MORTGAGE SERVICING, INC.
By:
----------------------------------
Name:
Title:
Date:
EXHIBIT C-2
RESERVED
EXHIBIT D
LOAN LEVEL FORMAT FOR TAPE INPUT,
RMBS SERVICER PERIOD REPORTING
EXHIBIT 1: STANDARD FILE LAYOUT - SCHEDULED/SCHEDULED
-------------------------- -------------------------------------------------- --------- ----------------------------------
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT
-------------------------- -------------------------------------------------- --------- ----------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
-------------------------- -------------------------------------------------- --------- ----------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
-------------------------- -------------------------------------------------- --------- ----------------------------------
BORROWER_NAME Mortgagor name assigned to Note Max length of 30
-------------------------- -------------------------------------------------- --------- ----------------------------------
SCHED_PMT_AMT P&I constant 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
-------------------------- -------------------------------------------------- --------- ----------------------------------
NET_RATE Gross Interest Rate less the Service Fee Rate 4 Max length of 6
-------------------------- -------------------------------------------------- --------- ----------------------------------
SERV_FEE_RATE Service Fee Rate 4 Max length of 6
-------------------------- -------------------------------------------------- --------- ----------------------------------
NEW_PAY_AMT ARM loan's forecasted P&I constant 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
NEW_LOAN_RATE ARM loan's forecasted Gross Interest Rate 4 Max length of 6
-------------------------- -------------------------------------------------- --------- ----------------------------------
ARM_INDEX_RATE ARM loan's index Rate used 4 Max length of 6
-------------------------- -------------------------------------------------- --------- ----------------------------------
ACTL_BEG_BAL Beginning Actual Balance 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
ACTL_END_BAL Ending Actual Balance 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
NEXT_DUE_DATE Borrower's next due date MM/DD/YYYY
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_AMT_1 Curtailment Amount 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_DATE_1 Due date Curtailment was applied to MM/DD/YYYY
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_ADJ_ AMT_1 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_AMT_2 Curtailment Amount 2 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_DATE_2 Due date Curtailment was applied to MM/DD/YYYY
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_ADJ_ AMT2 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_AMT_3 Curtailment Amount 3 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_DATE_3 Due date Curtailment was applied to MM/DD/YYYY
-------------------------- -------------------------------------------------- --------- ----------------------------------
CURT_ADJ_AMT3 Curtailment Interest, if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
SCHED_BEG_BAL Beginning Scheduled Balance 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
SCHED_END_BAL Ending Scheduled Balance 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
Scheduled Net Interest (less Service Fee)
SCHED_NET_INT portion of P&I 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
Liquidation Principal Amt to bring balance to
LIQ_AMT zero 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
PIF_DATE Liquidation Date MM/DD/YYYY
-------------------------- -------------------------------------------------- --------- ----------------------------------
ACTION_CODE Either 60 for liquidation or 65 for Repurchase Max length of 2
-------------------------- -------------------------------------------------- --------- ----------------------------------
PRIN_ADJ_AMT Principal Adjustments made to loan, if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
INT_ADJ_AMT Interest Adjustment made to loan, if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
PREPAYMENT PENALTY AMT Prepayment penalty amount, if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
Soldier and Sailor Adjustment amount, if
SOILDER_SAILOR ADJ AMT applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
NON ADV LOAN AMT Non Recoverable Loan Amount, if applicable 2 No commas(,) or dollar signs ($)
-------------------------- -------------------------------------------------- --------- ----------------------------------
EXHIBIT E
REPORTING DATA FOR DEFAULTED LOANS
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 SIZE
---- ---- ----
SERVICER LOAN # NUMBER (DOUBLE) 8
INVESTOR LOAN # NUMBER (DOUBLE) 8
BORROWER NAME TEXT 20
ADDRESS TEXT 30
STATE TEXT 2
Due Date Date/Time 8
ACTION CODE TEXT 2
FC Received Date/Time 8
File Referred to Atty 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 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
RFD 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
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
o ITEMS IN BOLD ARE MANDATORY FIELDS. WE MUST RECEIVE INFORMATION IN THOSE
FIELDS EVERY MONTH IN ORDER FOR YOUR FILE TO BE ACCEPTED.
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
15-BANKRUPTCY/LITIGATION
20-REFERRED FOR DEED-IN-LIEU
30-REFERRED FORE 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 Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
ACTION CODE 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
ACTION CODE 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
ACTION CODE 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
ACTION CODE 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
ACTION CODE 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
ACTION CODE 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
ACTION CODE 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
ACTION CODE 72 - To report that a Mortgage 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. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM- 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
EXHIBIT F
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
(a) 1. The numbers on the form correspond with the numbers listed
below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and
servicing fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing
fee that would have been earned if all delinquent payments had
been made as agreed. For documentation, an Amortization
Schedule from date of default through liquidation breaking out
the net interest and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal
Balance of the Mortgage Loan as calculated on a monthly basis.
For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete as applicable. All line entries must be supported by
copies of appropriate statements, vouchers, receipts, bills,
canceled checks, etc., to document the expense. Entries not
properly documented will not be reimbursed to the Servicer.
13. The total of lines 1 through 12.
(b) Credits:
14-21. Complete as applicable. All line entries must be supported by
copies of the appropriate claims forms, EOBs, HUD-1 and/or
other proceeds verification, statements, payment checks, etc.
to document the credit. If the Mortgage Loan is subject to a
Bankruptcy Deficiency, the difference between the Unpaid
Principal Balance of the Note prior to the Bankruptcy
Deficiency and the Unpaid Principal Balance as reduced by the
Bankruptcy Deficiency should be input on line 20.
22. The total of lines 14 through 21.
PLEASE NOTE: For HUD/VA loans, use line (15) for Part A/Initial
proceeds and line (16) for Part B/Supplemental proceeds.
(c) Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the
amount represents a realized gain, show the amount in
parenthesis ( ).
EXHIBIT 3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: ________________ Date: _____________________________
Phone: ______________________ Email Address:_____________________
------------------ --------------- ------------------
Servicer Loan No. Servicer Name Servicer Address
------------------ --------------- ------------------
XXXXX FARGO BANK, N.A. Loan No.________________________________________
Borrower's Name:_______________________________________________________
Property Address:______________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $_______________(1)
(2) Interest accrued at Net Rate _______________(2)
(3) Accrued Servicing Fees _______________(3)
(4) Attorney's Fees _______________(4)
(5) Taxes _______________(5)
(6) Property Maintenance _______________(6)
(7) MI/Hazard Insurance Premiums _______________(7)
(8) Utility Expenses _______________(8)
(9) Appraisal/BPO _______________(9)
(10) Property Inspections _______________(10)
(11) FC Costs/Other Legal Expenses _______________(11)
(12) Other (itemize) $_______________(12)
Cash for Keys________________________ _______________
HOA/Condo Fees_______________________ _______________
_____________________________________ _______________
_____________________________________ _______________
TOTAL EXPENSES $_______________(13)
CREDITS:
(14) Escrow Balance $_______________(14)
(15) HIP Refund _______________(15)
(16) Rental Receipts _______________(16)
(17) Hazard Loss Proceeds _______________(17)
(18) Primary Mortgage Insurance Proceeds _______________(18)
(19) Pool Insurance Proceeds _______________(19)
(20) Proceeds from Sale of Acquired Property _______________(20)
(21) Other (itemize) _______________(21)
_________________________________________ _______________
_________________________________________ _______________
TOTAL CREDITS $_______________(22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $_______________(23)
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