EXHIBIT 4.3
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Xxxxx Fargo Home Mortgage, Inc.,
as Servicer
[______________________],
as Indenture Trustee
Xxxxx Fargo Bank, National Association,
as Securities Administrator
and
Xxxxx Fargo Home Equity Asset-Backed Securities 20 - Trust,
as Issuer
_____________________________
Xxxxx Fargo Home Equity Asset-Backed Securities 20 - Trust,
Home Equity Asset-Backed Notes, Series 20 -
SERVICING AGREEMENT
Dated as of [_______], 20
_____________________________
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TABLE OF CONTENTS
Page
ARTICLE I.
Definitions
ARTICLE II.
ISSUER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section 2.01. Contract for Servicing; Possession of Custodial Files,
Maintenance of Retained Mortgage Files and Servicing
Files ...................................................... 10
Section 2.02. Books and Records ........................................... 11
ARTICLE III.
Servicing of the Mortgage Loans
Section 3.01. Servicer to Service ......................................... 12
Section 3.02. Collection and Liquidation of Mortgage Loans ................ 13
Section 3.03. Establishment of and Deposits to Collection Account ......... 14
Section 3.04. Permitted Withdrawals From Collection Account ............... 15
Section 3.05. Establishment of and Deposits to Escrow Account ............. 16
Section 3.06. Permitted Withdrawals From Escrow Account ................... 17
Section 3.07. Notification of Adjustments ................................. 18
Section 3.08. Establishment of and Deposits to Subsidy Account ............ 18
Section 3.09. Payment of Taxes, Insurance and Other Charges ............... 19
Section 3.10. Protection of Accounts ...................................... 19
Section 3.11. Maintenance of Hazard Insurance ............................. 20
Section 3.12. Maintenance of Mortgage Impairment Insurance ................ 21
Section 3.13. Maintenance of Fidelity Bond and Errors and Omissions
Insurance .................................................. 22
Section 3.14. Inspections ................................................. 22
Section 3.15. Restoration of Mortgaged Property ........................... 22
Section 3.16. Maintenance of PMI and/or LPMI Policy; Claims ............... 23
Section 3.17. Title, Management and Disposition of REO Property ........... 24
Section 3.18. Real Estate Owned Reports ................................... 26
Section 3.19. Liquidation Reports ......................................... 26
Section 3.20. Reports of Foreclosures and Abandonments of Mortgaged
Property ................................................... 26
Section 3.21. Prepayment Charges .......................................... 26
Section 3.22. Confidentiality/Protecting Customer Information ............. 27
Section 3.23. Credit Reporting ............................................ 27
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ARTICLE IV.
PAYMENTS TO INDENTURE TRUSTEE
Section 4.01. Remittances ................................................. 27
Section 4.02. Statements to Securities Administrator ...................... 28
Section 4.03. Advances by Servicer ........................................ 28
Section 4.04. Due Dates Other Than the First of the Month ................. 29
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01. Transfers of Mortgaged Property ............................. 29
Section 5.02. Satisfaction of Mortgages and Release of Mortgage Files ..... 30
Section 5.03. Servicing Compensation ...................................... 30
Section 5.04. Annual Audit Report ......................................... 31
Section 5.05. Annual Officer's Certificate ................................ 31
Section 5.06. Inspection .................................................. 32
ARTICLE VI.
Representations, Warranties and Agreements
Section 6.01. Representations, Warranties and Agreements of the
Servicer ................................................... 32
Section 6.02. Remedies for Breach of Representations and Warranties of the
Servicer ................................................... 34
Section 6.03. Additional Indemnification by the Servicer .................. 35
Section 6.04. Indemnification with Respect to Certain Taxes ............... 35
ARTICLE VII.
THE SERVICER
Section 7.01. Merger or Consolidation of the Servicer ..................... 36
Section 7.02. Limitation on Liability of the Servicer and Others .......... 36
Section 7.03. Limitation on Resignation and Assignment by the Servicer .... 37
ARTICLE VIII.
TERMINATION
Section 8.01. Termination for Cause ....................................... 38
Section 8.02. Termination Without Cause ................................... 39
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ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01. Successor to the Servicer ................................... 40
Section 9.02. Costs ....................................................... 42
Section 9.03. Protection of Confidential Information ...................... 42
Section 9.04. Notices ..................................................... 42
Section 9.05. Severability Clause ......................................... 43
Section 9.06. No Personal Solicitation .................................... 44
Section 9.07. Counterparts ................................................ 44
Section 9.08. Place of Delivery and Governing Law ......................... 44
Section 9.09. Further Agreements .......................................... 44
Section 9.10. Intention of the Parties .................................... 44
Section 9.11. Successors and Assigns; Assignment of Servicing Agreement ... 45
Section 9.12. Assignment by the Depositor ................................. 45
Section 9.13. Amendment ................................................... 45
Section 9.14. Waivers ..................................................... 45
Section 9.15. Exhibits .................................................... 45
Section 9.16. Intended Third Party Beneficiaries .......................... 45
Section 9.17. General Interpretive Principles ............................. 46
Section 9.18. Reproduction of Documents ................................... 46
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B MORTGAGE LOAN DOCUMENTS
EXHIBIT C COLLECTION ACCOUNT CERTIFICATION
EXHIBIT D ESCROW ACCOUNT CERTIFICATION
EXHIBIT E FORM OF CERTIFICATION
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This Servicing Agreement (this "Agreement"), entered into as of the
[_]st day of [______], 20 , by and among XXXXX FARGO HOME MORTGAGE, INC., a
California corporation ("Xxxxx Fargo"), as seller (in such capacity, the
"Seller"), Xxxxx Fargo, as servicer (in such capacity, the "Servicer"), Xxxxx
Fargo BANK, NATIONAL ASSOCIATION, as securities administrator (in such capacity,
the "Securities Administrator"),XXXXX FARGO HOME EQUITY ASSET-BACKED SECURITIES
20 - Trust, as issuer (in such capacity, the "Issuer"), and acknowledged by
[__________________________], as indenture trustee (the "Indenture Trustee"),
under the Indenture (as defined herein), recites and provides as follows:
W I T N E S S E T H:
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit A hereto (the "Mortgage Loans") on a servicing-retained basis to Xxxxx
Fargo Asset Securities Corporation (the "Depositor") pursuant to the Mortgage
Loan Purchase Agreement dated as of [_________], 20 (the "Mortgage Loan Purchase
Agreement"), between the Seller and the Depositor, the Depositor, in turn, has
conveyed the Mortgage Loans to Xxxxx Fargo Home Equity Asset-Backed Securities
20 - Trust (the "Issuer") pursuant to the Trust Agreement dated as of [_______],
20 (the "Trust Agreement"), between the Depositor and [_______] (the "Owner
Trustee"), and the Issuer, in turn, has pledged the Mortgage Loans to the
Indenture Trustee pursuant to the Indenture dated as of [______], 20 (the
"Indenture");
WHEREAS, the Seller is currently servicing the Mortgage Loans and
the Depositor, the Issuer and the Indenture Trustee desire that the Servicer
continue to service the Mortgage Loans pursuant to this Agreement, and the
Servicer has agreed to do so, subject to the right of the Seller to terminate
the rights and obligations of the Servicer hereunder at any time and to the
other conditions set forth herein;
WHEREAS, the Seller and the Servicer acknowledge and agree that the
Seller will assign all of its rights and delegate all of its obligations
hereunder (excluding the Seller's rights and obligations as owner of the
servicing rights relating to the Mortgage Loans and the Seller's rights and
obligations pursuant to Sections 8.02(ii) and (iii), 8.04 and 9.02 hereunder,
all of which rights and obligations will remain with the Seller) to the Issuer,
who, in turn, will pledge such rights to the Indenture Trustee, and that each
reference herein to the Seller is intended, unless otherwise specified, to mean
the Seller or the Indenture Trustee, as assignee, whichever is the owner or
pledgee of the Mortgage Loans from time to time;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Seller, the Servicer, the
Issuer, the Securities Administrator and the Indenture Trustee hereby agree as
follows:
ARTICLE I.
DEFINITIONS
The following terms are defined as follows:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Advance: With respect to each Remittance Date and each Mortgage
Loan, an amount equal to the Monthly Payment (with the interest portion of such
Monthly Payment adjusted to the Net Mortgage Interest Rate) that was due on the
Mortgage Loan on the Due Date in the related Collection Period, and that (i) was
delinquent at the close of business on the related Determination Date and (ii)
was not the subject of a previous Advance, but only to the extent that such
amount is expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries in respect of such Mortgage
Loan. To the extent that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect of such Mortgage
Loan, such determination shall be evidenced by an Officer's Certificate of a
Servicing Officer delivered to the Securities Administrator setting forth such
determination and the procedures and considerations of the Servicer forming the
basis of such determination.
Agreement: This Servicing Agreement and all amendments hereof
and supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans
(excluding (i) the Servicing Fee and (ii) Prepayment Charges attributable to the
Mortgage Loans), including but not limited to interest received on funds
deposited in the Collection Account, Subsidy Account or any Escrow Account, late
charges, fees received with respect to checks or bank drafts returned by the
related bank for non-sufficient funds, assumption fees, optional insurance
administrative fees and all other incidental fees and charges. The Servicer
shall retain all Ancillary Income to the extent not required to be deposited
into the Collection Account.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the party indicated therein or if the related
Mortgage has been recorded in the name of MERS or its designee, such actions as
are necessary to cause the Seller or its designee to be shown as the owner of
the related Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the States of
Maryland, Iowa, Minnesota and New York are authorized or obligated by law or
executive order to be closed.
Closing Date: [________], 20 .
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Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan documents.
Collection Account: The separate account or accounts created and
maintained pursuant to Section 3.03.
Collection Period: With respect to each Remittance Date, the period
commencing on the second day of the month immediately preceding the month of the
Remittance Date and ending on the first day of the month of the Remittance Date.
Custodial Agreement: The custodial agreement relating to the custody
of the Mortgage Loans, between the Custodian and the Indenture Trustee, as
acknowledged by the Servicer, dated as of [________], 20 .
Custodial File: With respect to each Mortgage Loan, the file
consisting of the Mortgage Loan documents listed as items 1 through 4 of Exhibit
B attached hereto, which Mortgage Loan documents have been delivered to the
Custodian as of the Closing Date, and any Retained Mortgage File delivered to
the Custodian upon the occurrence of a Document Transfer Event.
Custodian: Xxxxx Fargo Bank, National Association and any successors
and assigns.
Cut-off Date: [_______], 20 .
Depositor: Xxxxx Fargo Asset Securities Corporation, a Delaware
corporation, or any successor in interest.
Determination Date: With respect to each Remittance Date, the 17th
day of the month in which such Remittance Date occurs, or, if such 17th day is
not a Business Day, the next succeeding Business Day.
Distressed Mortgage Loan: As of any Determination Date, any Mortgage
Loan that is delinquent in payment for a period of ninety (90) days or more,
without giving effect to any grace period permitted by the related Mortgage
Loan, or for which the Servicer has accepted a deed in lieu of foreclosure.
Distribution Date: Commencing in [_____] 20 , the 25th day of each
month (or, if such day is not a Business Day, the next succeeding Business Day).
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Document Transfer Event: The day on which either (i) Xxxxx Fargo
Home Mortgage, Inc. or any successor thereto is no longer the servicer of any of
the Mortgage Loans, (ii) the senior, unsecured long-term debt rating of Xxxxx
Fargo & Company is less than "BBB-" by Fitch or (iii) any Rating Agency requires
the Servicer to deliver the Retained Mortgage Files to the Custodian.
Due Date: The day of the calendar month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace. Pursuant to Section
4.04, with respect to the Mortgage Loans for which payment from the Mortgagor is
due on a day other than the first day of the month, such Mortgage Loans will be
treated as if the Monthly Payment is due on the first day of the immediately
succeeding month.
Eligible Deposit Account: An account that is maintained with a
federal or state-chartered depository institution or trust company that complies
with the definition of Eligible Institution.
Eligible Institution: Any of the following:
(i) an institution whose:
(A) commercial paper, short-term debt obligations, or
other short-term deposits are rated at least "A-1+" or long-term unsecured
debt obligations are rated at least "AA-" by S&P, if the amounts on
deposit are to be held in the account for no more than 365 days; or
(B) commercial paper, short-term debt obligations,
demand deposits, or other short-term deposits are rated at least "A-2" by
S&P, if the amounts on deposit are to be held in the account for no more
than 30 days and are not intended to be used as credit enhancement. Upon
the loss of the required rating set forth in this clause (ii), the
accounts shall be transferred immediately to accounts which have the
required rating. Furthermore, commingling by the Servicer is acceptable at
the A-2 rating level if the Servicer is a bank, thrift, or depository and
provided the Servicer has the capability to immediately segregate funds
and commence remittance to an Eligible Deposit Account upon a downgrade;
or
(ii) the corporate trust department of a federal depository
institution or state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal Regulation Section 9.10(b), which, in either case, has corporate trust
powers and is acting in its fiduciary capacity.
Environmental Problem Property: A Mortgaged Property or REO Property
that is in violation of any environmental law, rule or regulation.
Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with Section 3.13.
Escrow Account: The separate account or accounts operated and
maintained pursuant to Section 3.05.
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Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Event of Default: Any event set forth in Section 8.01.
Xxxxxx Xxx: Xxxxxx Xxx, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with Section 3.13.
Fitch: Fitch Ratings or any successor in interest.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Holder: The meaning set forth in the Trust Agreement.
Indenture: The indenture dated as of [_______], 20 , pursuant to
which the Issuer pledged the Trust Estate to the Indenture Trustee to secure the
Notes.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property,
including the proceeds of any hazard or flood insurance policy, LPMI Policy or
PMI Policy.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related REO Property, if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
LPMI Loan: A Mortgage Loan with a LPMI Policy.
LPMI Policy: A policy of primary mortgage guaranty insurance for a
Mortgage Loan issued by a Qualified Insurer pursuant to which the related
premium is to be paid by the Seller pursuant to Section 5 of the Mortgage Loan
Purchase Agreement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
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MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc. or any successor in
interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy to be maintained by the Servicer in accordance
with Section 3.12.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note after giving effect to any applicable Relief Act Reduction.
Mortgage Loan: An individual mortgage loan that is the subject of
this Agreement and identified on the related Mortgage Loan Schedule, which may
be a first lien Mortgage Loan or a subordinate lien Mortgage Loan and which
Mortgage Loan includes without limitation the Mortgage Loan documents, the
Monthly Payments, Principal Prepayments, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan.
Mortgage Loan Schedule: A schedule of the Mortgage Loans attached
hereto as Exhibit A setting forth information with respect to such Mortgage
Loans as agreed to by the Seller, the Servicer and the Securities Administrator,
including but not limited to (i) a data field indicating whether such Mortgage
Loan is insured under a PMI Policy or LPMI Policy and identifying the related
Qualified Insurer, (ii) a Prepayment Charge Schedule, (iii) a data field
indicating the Custodian and (iv) a data field indicating the Servicing Fee
Rate.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Indenture Trustee, which shall be equal
to the Mortgage Interest Rate minus the Servicing Fee Rate.
Nonrecoverable Advance: Any Advance or Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property that,
in the good faith
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business judgment of the Servicer, will not or, in the case of a proposed
Advance or Servicing Advance, would not ultimately be recoverable from
collections on such Mortgage Loan, Monthly Payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or other amounts received with
respect to such Mortgage Loan or REO Property as provided herein; provided,
however, to the extent that the Servicer determines that any such amount is not
recoverable from collections or other recoveries in respect of such Mortgage
Loan, such determination shall be evidenced by a certificate of a Servicing
Officer delivered to the Securities Administrator setting forth such
determination and the procedures and considerations of the Servicer forming the
basis of such determination.
Noteholder: The meaning set forth in the Indenture.
Notes: The Notes issued pursuant to the Indenture.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President, or a Vice President or
an assistant Vice President and by the Treasurer, the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer, and delivered to
the Seller, Indenture Trustee and/or the Securities Administrator as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Seller, the Indenture
Trustee and/or the Securities Administrator, but which must be an independent
outside counsel with respect to any such opinion of counsel concerning all
federal income tax matters. An independent outside counsel's Opinion of Counsel
shall be obtained at the expense of the party requesting such Opinion of Counsel
but shall be obtained at the expense of the Trust Fund if the Indenture Trustee
or Securities Administrator is requesting such opinion.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by a Qualified Insurer, including any bulk policy acquired in respect of the
Mortgage Loans, as required by this Agreement with respect to certain Mortgage
Loans.
Prepayment Charge: With respect to any Mortgage Loan and Remittance
Date, the charges or premiums, as specified in the Prepayment Charge Schedule,
if any, due in connection with a full prepayment of such Mortgage Loan during
the immediately preceding Principal Prepayment Period in accordance with the
terms thereof.
Prepayment Charge Schedule: A data field in the Mortgage Loan
Schedule attached hereto as Exhibit A which sets forth the amount or method of
calculation of the Prepayment Charge and the term during which such Prepayment
Charge is imposed with respect to a Mortgage Loan.
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Prepayment Interest Shortfall Amount: With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan prior to
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the Servicing Fee) that would have accrued on the amount of such
Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
Prime Rate: The prime rate published from time to time, as published
as the average rate in the northeast edition of The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan, including any payment or other recovery of principal in
connection with the repurchase of a Mortgage Loan by the Depositor, the Servicer
or any other Person, which is received in advance of its scheduled Due Date,
including any Prepayment Charge or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: With respect to any Remittance Date and
any full or partial Principal Prepayment, the calendar month immediately
preceding the month of such Remittance Date.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Mae or Xxxxxxx Mac.
Rating Agency: Each of Xxxxx'x, Fitch and S&P or their successors.
If such agencies or their successors are no longer in existence, "Rating
Agencies" shall be such nationally recognized statistical rating agencies, or
other comparable person, designated by the Seller, notice of which designation
shall be given to the Indenture Trustee, Securities Administrator and the
Servicer.
Relief Act Reduction: With respect to any Mortgage Loan as to which
there has been a reduction in the amount of the interest collectible thereon as
a result of the application of the Servicemembers Civil Relief Act, any amount
by which interest collectible on such Mortgage Loan for the Due Date in the
related Collection Period is less than the interest accrued thereon for the
applicable one-month period at the Mortgage Interest Rate without giving effect
to such reduction.
Remittance Date: With respect to each Distribution Date, the 24th
day (or if such 24th day is not a Business Day, the first Business Day
immediately following) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 3.17.
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REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Indenture Trustee through foreclosure or by deed in lieu of
foreclosure, as described in Section 3.17.
Retained Mortgage File: With respect to each Mortgage Loan, the file
maintained by the Servicer prior to any Document Transfer Event consisting of
the Mortgage Loan documents listed as items 5 through 11 of Exhibit B attached
hereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. or any successor in interest.
Seller: Xxxxx Fargo Home Mortgage, Inc. or any successor in interest
or assign.
Servicer: Xxxxx Fargo Home Mortgage, Inc. or any successor in
interest or assign or any successor to the Servicer under this Agreement as
herein provided.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) taxes, assessments, water
rates, sewer rents and other charges which are or may become a lien upon the
Mortgaged Property, PMI Policy premiums and fire and hazard insurance coverage,
(e) any losses sustained by the Servicer with respect to the liquidation of the
Mortgaged Property, (f) compliance with the obligations pursuant to the
provisions of the Xxxxxx Xxx Guides and (g) penalties or late fees that were
advanced by the Servicer but which did not arise out of strict compliance with
this Agreement.
Servicing Fee: With respect to each Collection Period and any
Mortgage Loan, an amount equal to one-twelfth the product of (i) the Servicing
Fee Rate and (ii) the outstanding principal balance of such Mortgage Loan as of
the related Determination Date. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds to the extent permitted by
Section 3.02 of this Agreement) of such Monthly Payments collected by the
Servicer, or as otherwise provided under this Agreement.
Servicing Fee Rate: [___]% per annum.
Servicing File: With respect to each Mortgage Loan, the file
consisting of the Mortgage Loan documents listed as items 12 through 27 of
Exhibit B attached hereto plus copies of all Mortgage Loan documents contained
in the Custodial File and the Retained Mortgage File, which are retained by the
Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing
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officers furnished by the Servicer to the Securities Administrator or Indenture
Trustee upon request, as such list may from time to time be amended.
Subsidy Account: An account maintained by the Servicer specifically
to hold all Subsidy Funds to be applied to individual Subsidy Loans.
Subsidy Funds: With respect to any Subsidy Loans, funds contributed
by the employer of a Mortgagor in order to reduce the payments required from the
Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest
subsidy agreement pursuant to which the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided by the employer of the Mortgagor. Each Subsidy Loan will be identified
as such in the Mortgage Loan Schedule.
Trust Agreement: The Owner Trust Agreement dated as of [_________],
20 , between the Depositor and the Owner Trustee.
Trust Fund: The trust fund established by the Indenture, the assets
of which consist of the Mortgage Loans and any other assets as set forth
therein.
Indenture Trustee: [__________________], or any successor in
interest, or if any successor indenture trustee or co-trustee shall be appointed
as provided in the Trust Agreement, then such successor indenture trustee or
such co-trustee, as the case may be.
Any capitalized terms used and not defined in this Agreement shall
have the meanings ascribed to such terms in the Indenture.
ARTICLE II.
ISSUER'S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01. Contract for Servicing; Possession of Custodial Files,
Maintenance of Retained Mortgage Files and Servicing Files.
The Issuer, by execution and delivery of this Agreement, does hereby
contract with the Servicer as an independent contractor, subject to the terms of
this Agreement, for the continued servicing of the Mortgage Loans. On or before
the Closing Date, the Servicer shall have in its possession the Servicing Files
with respect to the Mortgage Loans listed on the Mortgage Loan Schedule. The
Servicer shall maintain a Servicing File with respect to each Mortgage Loan in
order to service such Mortgage Loans pursuant to this Agreement and each
Servicing File in its possession shall be held in trust by the Servicer for the
benefit of the Indenture Trustee; provided, however, that the Servicer shall
have no liability for any Servicing Files (or portions thereof) not delivered by
the Seller. The Servicer's possession of any portion of the Mortgage Loan
documents shall be at the will of the Indenture Trustee for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to this Agreement,
and such
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retention and possession by the Servicer shall be in a custodial capacity only.
Each Mortgage Note, Mortgage and the contents of the Servicing File have be
pledged to the Indenture Trustee pursuant to the Indenture and all records and
documents with respect to the related Mortgage Loan prepared by or which come
into the possession of the Servicer shall immediately vest in the Indenture
Trustee and shall be retained and maintained, in trust, by the Servicer at the
will of the Indenture Trustee in such custodial capacity only. The portion of
each Servicing File retained by the Servicer pursuant to this Agreement shall be
appropriately marked to clearly reflect the pledge of the related Mortgage Loan
to the Indenture Trustee. The Servicer shall release from its custody the
contents of any Servicing File retained by it only in accordance with this
Agreement.
Pursuant to the Mortgage Loan Purchase Agreement, the Seller will
have delivered the Custodial Files to the Custodian. In addition, each Retained
Mortgage File not delivered to the Custodian pursuant to the Mortgage Loan
Purchase Agreement are and shall be held in trust by the Servicer for the
benefit of the Indenture Trustee as the pledgee thereof. The possession of each
Retained Mortgage File held by the Servicer is in a custodial capacity only.
Each Retained Mortgage File has been pledged to the Indenture Trustee. The
Servicer shall release its custody of the contents of any Retained Mortgage File
only in accordance with written instructions from the Indenture Trustee, unless
such release is required pursuant to Section 5.02 or if a Document Transfer
Event occurs. Upon the occurrence of a Document Transfer Event, the party first
discovering such event shall promptly notify the Servicer, the Indenture Trustee
and the Custodian, as applicable, and, with respect to each Mortgage Loan,
deliver to the Custodian, within 60 days, the Retained Mortgage Files pursuant
to the terms of the Custodial Agreement.
Section 2.02. Books and Records.
All rights arising out of the Mortgage Loans shall be vested in the
Indenture Trustee (exclusive of the Seller's rights and obligations as owner of
the servicing rights), subject to the Servicer's right to service and administer
the Mortgage Loans hereunder in accordance with the terms of this Agreement. All
funds received on or in connection with a Mortgage Loan, other than the
Servicing Fee and other compensation and reimbursement to which the Servicer is
entitled as set forth herein, including but not limited to Section 5.03 below,
shall be received and held by the Servicer in trust for the benefit of the
Noteholders pursuant to the terms of this Agreement.
The Servicer shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.01 within one week of
their execution; provided, however, that the Servicer shall provide the
Custodian with a certified true copy of any such document submitted for
recordation within one week of its execution, and shall provide the original of
any document submitted for recordation or a copy of such document certified by
the appropriate public recording office to be a true and complete copy of the
original within 120 days of its submission for recordation.
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ARTICLE III.
SERVICING OF THE MORTGAGE LOANS
Section 3.01. Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Mortgage Loans from and after the Closing Date, and shall have
full power and authority, acting alone or through the utilization of a third
party service provider, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. The Servicer shall service the Mortgage Loans in accordance with the
guidelines of the applicable agency guides and shall comply with the rules and
regulations of the applicable agency. The Servicer shall be responsible for any
and all acts of a third party service provider and the Servicer's utilization of
such third party service provider shall in no way relieve the liability of the
Servicer under this Agreement.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Servicer's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the Trust
Fund. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan, the Servicer shall, on the
Business Day immediately preceding the Remittance Date in any month in which any
such principal or interest payment has been deferred, make a Advance in
accordance with Section 4.03, in an amount equal to the difference between (a)
such month's principal and one month's interest at the Net Mortgage Interest
Rate on the unpaid principal balance of such Mortgage Loan and (b) the amount
paid by the Mortgagor. The Servicer shall be entitled to reimbursement for such
advances to the same extent as for all other advances made pursuant to Section
3.04. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and the Indenture Trustee, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. Upon the reasonable request of the Servicer, the Indenture
Trustee shall execute and deliver to the Servicer with any powers of attorney
and other documents, furnished to it by the Servicer and reasonably satisfactory
to the Indenture Trustee, necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties under this Agreement; provided
that the Indenture Trustee shall not be liable for the actions of the Servicer
under such powers of attorney unless such actions of the Servicer are performed
at, and in accordance with, the written direction of the Indenture Trustee.
Promptly after the execution of any assumption, modification, consolidation or
extension of any Mortgage Loan, the Servicer shall forward to the Securities
Administrator copies of any documents evidencing such assumption, modification,
consolidation or extension.
The Servicer shall not without the Indenture Trustee's written
consent: (i) initiate any action, suit or proceedings solely under the Indenture
Trustee's name without indicating the
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Servicer's, representative capacity or (ii) take any action with the intent to
cause, and which actually does cause, the Indenture Trustee to be registered to
do business in any state. The Servicer shall indemnify the Indenture Trustee for
any and all costs, liabilities and expenses incurred by the Indenture Trustee in
connection with the negligent or willful misuse of such powers of attorney by
the Servicer.
In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures (including collection procedures) and exercise the same
care that it would employ and exercise in servicing and administering similar
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement.
Section 3.02. Collection and Liquidation of Mortgage Loans.
Continuously from the Closing Date until the date each Mortgage Loan
ceases to be subject to this Agreement, the Servicer shall proceed diligently to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable and shall take special care in ascertaining and
estimating Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loans and each related Mortgaged Property,
to the end that the installments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable.
The Servicer shall use its best efforts, consistent with the
procedures that the Servicer would use in servicing similar mortgage loans for
its own account, to foreclose upon or otherwise comparably convert the ownership
of such Mortgaged Properties as come into and continue in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.01. The Servicer shall use its best efforts to
realize upon defaulted Mortgage Loans in such a manner as will maximize the
receipt of principal and interest by the Indenture Trustee, taking into account,
among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which Mortgaged Property shall
have suffered damage, the Servicer shall not be required to expend its own funds
toward the restoration of such property unless it shall determine in its
discretion (i) that such restoration will increase the proceeds of liquidation
of the related Mortgage Loan after reimbursement to itself for such expenses,
and (ii) that such expenses will be recoverable by the Servicer through
Insurance Proceeds or Liquidation Proceeds from the related Mortgaged Property.
In the event that any payment due under any Mortgage Loan and not postponed
pursuant to Section 3.01 is not paid when the same becomes due and payable, or
in the event the Mortgagor fails to perform any other covenant or obligation
under the Mortgage Loan and such failure continues beyond any applicable grace
period, the Servicer shall take such action as (1) shall be consistent with
Accepted Servicing Practices, (2) the Servicer shall determine prudently to be
in the best interest of the Trust Fund, and (3) is consistent with any related
PMI Policy or LPMI Policy. In the event that any payment due under any Mortgage
Loan is not postponed pursuant to Section 3.01 and remains delinquent for a
period of ninety (90) days or any other default continues for a period of ninety
(90) days beyond the expiration of any grace or cure period, the Servicer shall
commence foreclosure proceedings, provided that prior to commencing foreclosure
proceedings, the Servicer shall notify the Securities Administrator in writing
of the
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Servicer's intention to do so. In such connection, the Servicer shall be
responsible for advancing all costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related Mortgaged Property, as contemplated in Section 3.04.
Section 3.03. Establishment of and Deposits to Collection Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Collection
Accounts, in the form of time deposit or demand accounts, titled "Xxxxx Fargo
Home Mortgage, Inc. in trust for [______________], as Indenture Trustee for
Xxxxx Fargo Home Equity Asset-Backed Securities 20 - Trust, Home Equity
Asset-Backed Notes, Series 20 - ." The Collection Account shall be an Eligible
Deposit Account established with an Eligible Institution. Funds deposited in the
Collection Account may be drawn on by the Servicer in accordance with Section
3.04. The creation of any Collection Account shall be evidenced by a
certification in the form of Exhibit C hereto.
The Servicer shall deposit in the Collection Account within one (1)
Business Day of the Servicer's receipt, and retain therein, the following
collections received by the Servicer and payments made by the Servicer after the
Cut-off Date (other than scheduled payments of principal and interest due on or
before the Cut-off Date):
(i) all payments on account of principal on the Mortgage
Loans, including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Net Mortgage Interest Rate;
(iii) all Prepayment Charges;
(iv) all Liquidation Proceeds;
(v) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 3.11 (other than proceeds to be held in the Escrow
Account and applied to the restoration and repair of the Mortgaged Property or
released to the Mortgagor in accordance with the related Mortgage Loan documents
and Accepted Servicing Practices);
(vi) all Condemnation Proceeds that are not applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor in
accordance with the related Mortgage Loan documents and Accepted Servicing
Practices;
(vii) any amount required to be deposited in the Collection
Account pursuant to this Agreement;
(viii) with respect to each Principal Prepayment in full, the
Prepayment Interest Shortfall Amount, if any, for the month of distribution.
Such deposit shall be made from
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the Servicer's own funds without reimbursement therefor up to a maximum amount
per month of the Servicing Fee actually received for such month for the Mortgage
Loans;
(ix) all Advances made by the Servicer pursuant to Section
4.03;
(x) any amounts received from the seller of a Mortgage Loan or
any other person giving representations and warranties with respect to the
Mortgage Loan, in connection with the repurchase of any Mortgage Loan;
(xi) any amounts required to be deposited by the Servicer
pursuant to Section 3.11 in connection with the deductible clause in any blanket
hazard insurance policy;
(xii) any amounts received with respect to or related to any
REO Property or REO Disposition Proceeds;
(xiii) any amounts required to be deposited by the Servicer
pursuant to Section 3.16 in connection with any unpaid claims that are a result
of a breach by the Servicer or any subservicer of the obligations hereunder or
under the terms of a PMI Policy;
(xiv) any amounts received by the Servicer under a PMI or LPMI
Policy; and
(xv) an amount from the Subsidy Account that when added to the
Mortgagor's payment will equal the full monthly amount due under the related
Mortgage Note.
The foregoing requirements for deposit into the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of the Servicing Fee and
Ancillary Income need not be deposited by the Servicer into the Collection
Account. Any interest paid on funds deposited in the Collection Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Collection Account pursuant to Section 3.04. Additionally, any other benefit
derived from the Collection Account associated with the receipt, disbursement
and accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
Section 3.04. Permitted Withdrawals From Collection Account.
The Servicer shall, from time to time, withdraw funds from the
Collection Account for the following purposes:
(i) to make payments to the Indenture Trustee in the amounts
and in the manner provided for in Section 4.01;
(ii) in the event the Servicer has elected not to retain the
Servicing Fee out of any Mortgagor payments on account of interest or other
recovery of interest with respect to a particular Mortgage Loan (including late
collections of interest on such Mortgage Loan, or interest portions of Insurance
Proceeds, Liquidation Proceeds or Condemnation Proceeds) prior
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to the deposit of such Mortgagor payment or recovery in the Collection Account,
to pay to itself the related Servicing Fee from all such Mortgagor payments on
account of interest or other such recovery for interest with respect to that
Mortgage Loan;
(iii) to reimburse itself for unreimbursed Advances and
Servicing Advances, the Servicer's right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and other amounts received in respect of the related REO Property, and
such other amounts as may be collected by the Servicer from the Mortgagor or
otherwise relating to such Mortgage Loan, it being understood that, in the case
of any such reimbursement, the Servicer's right thereto shall be prior to the
rights of the Trust Fund;
(iv) to reimburse itself for any unpaid Servicing Fees, the
Servicer's right to reimburse itself pursuant to this subclause (iv) with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and other
amounts received in respect of the related REO Property, and such other amounts
as may be collected by the Servicer from the Mortgagor or otherwise relating to
the Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of the
Trust Fund;
(v) following the liquidation of a Mortgage Loan, to reimburse
itself for remaining unpaid Servicing Fees and unreimbursed Nonrecoverable
Advances with respect to any defaulted Mortgage Loan made by the Servicer in
accordance with this Agreement;
(vi) to pay itself interest on funds deposited in the
Collection Account;
(vii) to transfer funds to another Eligible Institution in
accordance with Section 3.10 hereof;
(viii) to withdraw funds deposited in error; and
(ix) to clear and terminate the Collection Account upon the
termination of this Agreement.
Section 3.05. Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled, "Xxxxx Fargo Home Mortgage, Inc. in trust for
[______________], as Indenture Trustee for Xxxxx Fargo Home Equity Asset-Backed
Securities 20 - Trust, Home Equity Asset-Backed Notes, Series 20 - ." Any Escrow
Account shall be an Eligible Deposit Account established with an Eligible
Institution. Funds deposited in the Escrow Account may be drawn on by the
Servicer in accordance with Section 3.06. The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit D hereto.
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The Servicer shall deposit in the Escrow Account or Accounts within
one (1) Business Day of the Servicer's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the restoration or repair of
any Mortgaged Property.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Servicer shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 3.06. Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, condominium charges, fire
and hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Servicer for any Servicing Advance made
by the Servicer with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage Loan;
(iv) to the extent permitted by applicable law, for transfer
to the Collection Account and application to reduce the principal balance of the
Mortgage Loan in accordance with the terms of the related Mortgage and Mortgage
Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with Section 3.15;
(vi) to pay to the Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to withdraw funds deposited in error; and
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(viii) to clear and terminate the Escrow Account on the
termination of this Agreement.
The Servicer will be responsible for the administration of the
Escrow Accounts and will be obligated to make Servicing Advances to the Escrow
Account in respect of its obligations under this Section 3.06, reimbursable from
the Escrow Accounts or Collection Account to the extent not collected from the
related Mortgagor, anything to the contrary notwithstanding, when and as
necessary to avoid the lapse of insurance coverage on the Mortgaged Property, or
which the Servicer knows, or in the exercise of the required standard of care of
the Servicer hereunder should know, is necessary to avoid the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Servicer receives notice of
a tax lien with respect to the Mortgage being imposed, the Servicer will, within
ten (10) Business Days of such notice, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property.
Section 3.07. Notification of Adjustments.
With respect to each adjustable rate Mortgage Loan, the Servicer
shall adjust the Mortgage Interest Rate on the related interest rate adjustment
date and shall adjust the Monthly Payment on the related mortgage payment
adjustment date, if applicable, in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and Monthly Payment adjustments. Upon the discovery by the
Servicer that the Servicer has failed to adjust a Mortgage Interest Rate or
Monthly Payment in accordance with the terms of the related Mortgage Note, the
Servicer shall immediately deposit in the Collection Account from its own funds
the amount of any interest loss or deferral caused the Trust Fund thereby.
Section 3.08. Establishment of and Deposits to Subsidy Account.
(a) The Servicer shall segregate and hold all Subsidy Funds
collected and received pursuant to the Subsidy Loans separate and apart from any
of its own funds and general assets and shall establish and maintain one or more
Subsidy Accounts, in the form of time deposit or demand accounts, titled "Xxxxx
Fargo Home Mortgage, Inc. in trust for [______________], as Indenture Trustee
for Xxxxx Fargo Home Equity Asset-Backed Securities 20 - Trust, Home Equity
Asset-Backed Notes, Series 20 - ." The Subsidy Account shall be an Eligible
Deposit Account established with an Eligible Institution.
(b) The Servicer shall, from time to time, withdraw funds from the
Subsidy Account for the following purposes:
(i) to deposit in the Collection Account in the amounts and in
the manner provided for in Section 3.03(xv);
(ii) to transfer funds to another Eligible Institution in
accordance with Section 3.10 hereof;
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(iii) to withdraw funds deposited in error; and
(iv) to clear and terminate the Subsidy Account upon the
termination of this Agreement.
(c) Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer may employ the Collection Account as the Subsidy Account
to the extent that the Servicer can separately identify any Subsidy Funds
deposited therein.
Section 3.09. Payment of Taxes, Insurance and Other Charges.
(a) With respect to each Mortgage Loan which provides for Escrow
Payments, the Servicer shall maintain accurate records of those escrowed items
which are or may become a lien upon the Mortgaged Property and the status of
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) ("Property
Charges") and shall effect payment thereof prior to the applicable penalty or
termination date, employing for such purpose deposits of the Mortgagor in the
Escrow Account which shall have been estimated and accumulated by the Servicer
in amounts sufficient for such purposes, as allowed under the terms of the
Mortgage. The Servicer assumes full responsibility for the timely payment of all
such bills and shall make Servicing Advances of all such charges irrespective of
each Mortgagor's faithful performance in the payment of same or the making of
the Escrow Payments, and such payments.
(b) To the extent that a Mortgage Loan does not provide for Escrow
Payments, the Servicer shall make Servicing Advances to effect payment of all
Property Charges upon receipt of notice of any failure to pay on the part of the
Mortgagor, or at such other time as the Servicer determines to be in the best
interest of the Trust Fund, provided that in any event the Servicer shall pay
such charges on or before the earlier of (a) any date by which payment is
necessary to preserve the lien status of the Mortgage or (b) the date which is
ninety (90) days after the date on which such charges first became due. The
Servicer shall pay any late fee or penalty which is payable due to any delay in
payment of any Property Charge after the earlier to occur of (a) the date on
which the Servicer receives notice of the failure of the Mortgagor to pay such
Property Charge or (b) the date which is ninety days after the date on which
such charges first became due.
Section 3.10. Protection of Accounts.
The Servicer may transfer the Collection Account, Subsidy Account or
any Escrow Account to a different Eligible Institution from time to time and
shall give notice to the Indenture Trustee and Securities Administrator of any
change in the location of the Collection Account; provided that in the event the
Collection Account, Subsidy Account or any Escrow Account is held in a
depository institution or trust company that ceases to be an Eligible
Institution, the Servicer shall transfer such Collection Account, Subsidy
Account or Escrow Account, as the case may be, to an Eligible Institution.
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The Servicer shall bear any expenses, losses or damages sustained by
the Indenture Trustee if the Collection Account, Subsidy Account and/or the
Escrow Account are not demand deposit accounts.
Section 3.11. Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are insured
by a generally acceptable insurer acceptable under Xxxxxx Xxx or Xxxxxxx Mac
guidelines against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located, in
an amount which is at least equal to the lesser of (i) the replacement value of
the improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier acceptable to Xxxxxx
Mae or Xxxxxxx Mac in an amount representing coverage equal to the lesser of (i)
the minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located
in a special flood hazard area and is not covered by flood insurance or is
covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and if
said Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor's behalf.
If a Mortgage Loan is secured by a unit in a condominium project,
the Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability and fidelity coverage, is being maintained in
accordance with then current Xxxxxx Xxx or Xxxxxxx Mac requirements.
In the event that the Servicer shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant to
the terms of the Mortgage, the Servicer shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
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All policies required hereunder shall name the Servicer as loss
payee and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Mae or Xxxxxxx Mac and
are licensed to do business in the jurisdiction in which the Mortgaged Property
is located. The Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address. The Servicer shall furnish to the
Mortgagor a formal notice of expiration of any such insurance in sufficient time
for the Mortgagor to arrange for renewal coverage by the expiration date.
Pursuant to Section 3.03, any amounts collected by the Servicer
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Servicer's normal servicing
procedures as specified in Section 3.15) shall be deposited in the Collection
Account subject to withdrawal pursuant to Section 3.04.
Notwithstanding anything set forth in the preceding paragraph, the
Servicer agrees to indemnify the Indenture Trustee, the Noteholders and the
Trust Fund for any claims, losses, damages, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, fees and expenses that
any such indemnified party may sustain in any way related to the failure of the
Mortgagor (or the Servicer) to maintain hazard insurance or flood insurance with
respect to the related Mortgaged Property which complies with the requirements
of this section.
Section 3.12. Maintenance of Mortgage Impairment Insurance.
In the event that the Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such policy
provides coverage in an amount equal to the amount required pursuant to Section
3.11 and otherwise complies with all other requirements of Section 3.11, it
shall conclusively be deemed to have satisfied its obligations as set forth in
Section 3.11. Any amounts collected by the Servicer under any such policy
relating to a Mortgage Loan shall be deposited in the Collection Account subject
to withdrawal pursuant to Section 3.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained on
the related Mortgaged Property a policy complying with Section 3.11, and there
shall have been a loss which would have been covered by such policy, the
Servicer shall deposit in the Collection Account at the time of such loss the
amount not otherwise payable under the blanket policy because of such deductible
clause, such amount to deposited from the Servicer's funds, without
reimbursement therefor. Upon request of the Securities Administrator, the
Servicer shall cause to be delivered to such person a certificate of
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insurance of such policy and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to the Securities Administrator.
Section 3.13. Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Servicer Employees"). Any such Fidelity Bond
and Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Servicer Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Servicer against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 3.13 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Servicer from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by the Xxxxxx Mae Guides or by Xxxxxxx Mac in the
Xxxxxxx Xxx Xxxxxxx' & Servicers' Guide. Upon the request of the Securities
Administrator, the Servicer shall cause to be delivered to such party a
certificate of insurance for such fidelity bond and insurance policy and a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without thirty
(30) days' prior written notice to the Securities Administrator.
Section 3.14. Inspections.
The Servicer shall inspect the Mortgaged Property as often as deemed
necessary by the Servicer in accordance with Accepted Servicing Practices to
assure itself that the value of the Mortgaged Property is being preserved. In
addition, if any Mortgage Loan is more than forty-five (45) days delinquent, the
Servicer promptly shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as may
be required by the primary mortgage guaranty insurer. Upon request, the Servicer
shall produce an electronic report of each such inspection.
Section 3.15. Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the Securities
Administrator prior to releasing any Insurance Proceeds or Condemnation Proceeds
to the Mortgagor to be applied to the restoration or repair of the Mortgaged
Property if such release is in accordance with Accepted Servicing Practices. For
claims greater than $15,000, at a minimum, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(i) the Servicer shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with respect
thereto;
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(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics' and materialmen's liens;
(iii) the Servicer shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
Section 3.16. Maintenance of PMI and/or LPMI Policy; Claims.
(a) The Servicer shall comply with all provisions of applicable
state and federal law relating to the cancellation of, or collection of premiums
with respect to, PMI Policies, including, but not limited to, the provisions of
the Homeowners Protection Act of 1998, and all regulations promulgated
thereunder, as amended from time to time. The Servicer shall be obligated to
make premium payments with respect to PMI Policies required to be maintained by
the Mortgagor, if the Mortgagor is required but fails to pay any PMI Policy
premium, which shall be paid from the Servicer's own funds. The Seller shall be
required, pursuant to the Mortgage Loan Purchase Agreement, to make all premium
payments with respect to LPMI Policies. Any premium payments (other than premium
payments with respect to LPMI Policies) made by the Servicer from its own funds
pursuant to this Section 3.16(a) shall be recoverable by the Servicer as a
Servicing Advance, subject to the reimbursement provisions of Section 3.04(iii).
Except as disclosed on the Mortgage Loan Schedule, with respect to
each Mortgage Loan (other than LPMI Loans) with a loan-to-value ratio at
origination in excess of 80%, the Servicer shall maintain or cause the Mortgagor
to maintain (to the extent that the Mortgage Loan requires the Mortgagor to
maintain such insurance) in full force and effect a PMI Policy, and shall pay or
shall cause the Mortgagor to pay the premium thereon on a timely basis, until
the LTV of such Mortgage Loan is reduced to 80%. In the event that such PMI
Policy shall be terminated, the Servicer shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated PMI Policy, at substantially the same fee
level. The Servicer shall not take any action which would result in noncoverage
under any applicable PMI Policy of any loss which, but for the actions of the
Servicer would have been covered thereunder. In connection with any assumption
or substitution agreements entered into or to be entered into with respect to a
Mortgage Loan, the Servicer shall promptly notify the insurer under the related
PMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such PMI Policy and shall take all actions which
may be required by such insurer as a condition to the continuation of coverage
under such PMI Policy. If such PMI Policy is terminated as a result of such
assumption or substitution of liability, the Servicer shall obtain a replacement
PMI Policy as provided above.
(b) With respect to each Mortgage Loan covered by a PMI Policy or
LPMI Policy, the Servicer shall take all such actions on behalf of the Indenture
Trustee as are necessary to service, maintain and administer the related
Mortgage Loan in accordance with such Policy
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and to enforce the rights under any such Policy. Except as expressly set forth
herein, the Servicer shall have full authority on behalf of the Trust Fund to do
anything it deems appropriate or desirable in connection with the servicing,
maintenance and administration of any such Policy; provided that the Servicer
shall not take any action to permit any modification or assumption of a Mortgage
Loan covered by an LPMI Policy or PMI Policy, or take any other action with
respect to such Mortgage Loan, which would result in non-coverage under any such
Policy of any loss which, but for actions of the Servicer or any subservicer,
would have been covered thereunder. If the Qualified Insurer fails to pay a
claim under an LPMI Policy or PMI Policy solely as a result of a breach by the
Servicer or any subservicer of its obligations hereunder or under such Policy,
the Servicer shall be required to deposit in the Collection Account on or prior
to the next succeeding Remittance Date an amount equal to such unpaid claim from
its own funds without any rights to reimbursement from the Trust Fund. The
Servicer shall cooperate with the Qualified Insurers and shall furnish all
reasonable evidence and information in the possession of the Servicer to which
the Servicer has access with respect to the related Mortgage Loan; provided,
however, notwithstanding anything to the contrary contained in any LPMI Policy
or PMI Policy, the Servicer shall not be required to submit any reports to the
related Qualified Insurer until a reporting date that is at least 15 days after
the Servicer has received sufficient loan level information from the Seller to
appropriately code its servicing systems in accordance with the Qualified
Insurer's requirements.
(c) In connection with its activities as servicer, the Servicer
agrees to prepare and present, on behalf of itself and the Indenture Trustee,
claims to the Qualified Insurer under any PMI Policy or LPMI Policy in a timely
fashion in accordance with the terms of such PMI Policy or LPMI Policy and, in
this regard, to take such action as shall be necessary to permit recovery under
any PMI Policy or LPMI Policy respecting a defaulted Mortgage Loan. Any amounts
collected by the Servicer under any PMI Policy or LPMI Policy shall be deposited
in the Collection Account pursuant to Section 3.03(xiv), subject to withdrawal
pursuant to Section 3.04.
(d) The Indenture Trustee shall furnish the Servicer with any powers
of attorney and other documents (within three (3) Business Days upon request
from the Servicer) in form as provided to it necessary or appropriate to enable
the Servicer to service and administer any PMI or LPMI Policy; provided,
however, that the Indenture Trustee shall not be liable for the actions of the
Servicer under such power of attorney unless such actions of the Servicer are
performed at, and in accordance with, the written direction of the Indenture
Trustee.
(e) Notwithstanding the provisions of (a) and (b) above, the
Servicer shall not take any action in regard to any PMI Policy or LPMI Policy
inconsistent with the interests of the Indenture Trustee or the Noteholders or
with the rights and interests of the Indenture Trustee or the Noteholders under
this Agreement.
Section 3.17. Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Indenture Trustee or its nominee in trust for
the benefit of the Noteholders, or in the event the
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Indenture Trustee is not authorized or permitted to hold title to real property
in the state where the REO Property is located, or would be adversely affected
under the "doing business" or tax laws of such state by so holding title, the
deed or certificate of sale shall be taken in the name of such Person or Persons
as shall be consistent with an Opinion of Counsel obtained by the Servicer from
any attorney duly licensed to practice law in the state where the REO Property
is located. The Person or Persons holding such title other than the Indenture
Trustee shall acknowledge in writing that such title is being held as nominee
for the Indenture Trustee.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Indenture Trustee solely for the purpose of its prompt
disposition and sale. The Servicer, either itself or through an agent selected
by the Servicer, shall manage, conserve, protect and operate the REO Property in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a period not
greater than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Indenture
Trustee and the Noteholders.
If the Servicer hereafter becomes aware that a Mortgaged Property is
an Environmental Problem Property, the Servicer will notify the Securities
Administrator of the existence of the Environmental Problem Property.
Additionally, the Servicer shall set forth in such notice a description of such
problem, a recommendation to the Securities Administrator relating to the
proposed action regarding the Environmental Problem Property, and the Servicer
shall carry out the recommendation set forth in such notice in accordance with
the terms and provisions of Section 9.04 below. If the Servicer has received
reliable instructions to the effect that a Property is an Environmental Problem
Property (e.g., Servicer obtains a broker's price opinion which reveals the
potential for such problem), the Servicer will not accept a deed-in-lieu of
foreclosure upon any such Property without first obtaining a preliminary
environmental investigation for the Property satisfactory to the Securities
Administrator.
The disposition of REO Property shall be carried out by the Servicer
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Trust Fund. The proceeds of sale of the REO
Property shall be promptly deposited in the Collection Account.
The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The proceeds of sale of the REO Property shall be promptly deposited
in the Collection Account. As soon as practical thereafter the expenses of such
sale shall be paid and the Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed Advances
made pursuant to this Section or Section 4.03.
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The Servicer shall make advances of all funds necessary for the
proper operation, management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 3.11, such advances
to be reimbursed from the disposition or liquidation proceeds of the REO
Property. The Servicer shall make monthly distributions on each Remittance Date
to the Indenture Trustee of the net cash flow from the REO Property (which shall
equal the revenues from such REO Property net of the expenses described in this
Section 3.17 and of any reserves reasonably required from time to time to be
maintained to satisfy anticipated liabilities for such expenses).
Section 3.18. Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish to the Securities Administrator a statement with respect
to any REO Property covering the operation of such REO Property for the previous
month and the Servicer's efforts in connection with the sale of such REO
Property and any rental of such REO Property incidental to the sale thereof for
the previous month.
Section 3.19. Liquidation Reports.
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 Servicer shall submit to the Securities Administrator a
liquidation report with respect to such Mortgaged Property. In addition, the
Servicer shall provide the Securities Administrator a report setting forth
Servicing Advances and other expenses incurred in connection with the
liquidation of any Mortgage Loan.
Section 3.20. Reports of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Servicer shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code.
Section 3.21. Prepayment Charges.
The Servicer or any designee of the Servicer shall not waive any
Prepayment Charge with respect to any Mortgage Loan which contains a Prepayment
Charge which prepays during the term of the charge. If the Servicer or its
designee fails to collect the Prepayment Charge upon any prepayment of any
Mortgage Loan which contains a Prepayment Charge, the Servicer shall pay the
Trust Fund at such time (by deposit to the Collection Account) an amount equal
to amount of the Prepayment Charge which was not collected. Notwithstanding the
above, the Servicer or its designee may waive (and shall waive, in the case of
clause (c) below) a Prepayment Charge without paying the Trust Fund the amount
of the Prepayment Charge if (a) the Mortgage Loan is in default (defined as 61
days or more delinquent) or foreseen to be in default and such waiver would
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan, (b) the collection of the
Prepayment Charge would be in violation of applicable laws or (c)
notwithstanding any state or federal law to the contrary, any Prepayment Charge
in any instance when a Mortgage Loan is in foreclosure.
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Section 3.22. Confidentiality/Protecting Customer Information.
Each party agrees that it shall comply with all applicable laws and
regulations regarding the privacy or security of Customer Information shall
maintain appropriate administrative, technical and physical safeguards to
protect the security, confidentiality and integrity of Customer Information,
including, if applicable, maintaining security measures designed to meet the
Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 66 Fed. Reg. 8616 and complying with the privacy regulations under
Title V of the Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. ss. 6801 et seq., and the rules
promulgated thereunder. For purposes of this Section, "Customer Information"
means any personal information concerning a Mortgagor that is disclosed by one
party to this Agreement to the other.
Section 3.23. Credit Reporting.
For each Mortgage Loan, the Servicer has and shall continue to
accurately and 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 each of the following
credit repositories: Equifax Credit Information Services, Inc., Trans Union, LLC
and Experian Information Solution, Inc., on a monthly basis.
ARTICLE IV.
PAYMENTS TO INDENTURE TRUSTEE
Section 4.01. Remittances.
On each Remittance Date, the Servicer shall remit on a
scheduled/scheduled basis by wire transfer of immediately available funds to the
Indenture Trustee (a) all amounts deposited in the Collection Account as of the
close of business on the last day of the related Collection Period (net of
charges against or withdrawals from the Collection Account pursuant to Section
3.04), plus (b) all Advances, if any, which the Servicer is obligated to make
pursuant to Section 4.03, minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or
REO Disposition Proceeds received after the applicable Principal Prepayment
Period, which amounts shall be remitted on the following Remittance Date,
together with any additional interest required to be deposited in the Collection
Account in connection with such Principal Prepayment in accordance with Section
3.03(viii), and minus (d) any amounts attributable to Monthly Payments collected
but due on a Due Date or Due Dates subsequent to the first day of the month in
which such Remittance Date occurs, which amounts shall be remitted on the
Remittance Date next succeeding the Due Date related to such Monthly Payment.
With respect to any remittance received by the Indenture Trustee
after the Business Day on which such payment was due, the Servicer shall pay to
the Indenture Trustee interest on any such late payment at an annual rate equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Collection Account by the Servicer
on the date such late payment is made and shall cover the period commencing
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with the day following such Business Day and ending with the Business Day on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date. The
payment by the Servicer of any such interest shall not be deemed an extension of
time for payment or a waiver of any Event of Default by the Indenture Trustee.
All remittances required to be made to the Indenture Trustee shall
be made to the following wire account or to such other account as may be
specified by the Indenture Trustee from time to time:
[_______________].
ABA#: [__________]
Account Name: [_____________]
Account Number: [___________]
Beneficiary: [____________]
For further credit to: [_________]
Section 4.02. Statements to Securities Administrator.
Not later than the tenth (10th) calendar day of each month, the
Servicer shall furnish to the Securities Administrator an electronic monthly
remittance advice in the Fidelity (or any successor thereto) S50Y format (or in
such other formats mutually agreed to between the Servicer and the Securities
Administrator) (the "Remittance Report"), relating to the period ending on the
last day of the preceding calendar month.
Such Remittance Report shall also be accompanied by a supplemental
report provided to the Securities Administrator and the Seller which includes on
an aggregate basis for the previous Collection Period (i) the amount of claims
filed on any LPMI Policy, (ii) the amount of any claim payments made on any LPMI
Policy, (iii) the amount of claims denied or curtailed on any LPMI Policy and
(iv) policies cancelled with respect to those Mortgage Loans covered by any LPMI
Policy purchased by the Seller on behalf of the Trust Fund.
The Securities Administrator shall prepare and file any and all
usual and customary tax returns, information statements or other filings
required to be delivered to any governmental taxing authority, the Indenture
Trustee or its designee pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Securities Administrator with such information
concerning the Mortgage Loans as is necessary for the Securities Administrator
to prepare federal income tax returns as the Securities Administrator may
reasonably request from time to time. Such obligation of the Servicer shall be
deemed satisfied to the extent that substantially comparable information has
been provided by the Servicer throughout the calendar year.
Section 4.03. Advances by Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer shall deposit in the Collection Account from its own funds or from
amounts held for future distribution, or both, an amount equal to all Monthly
Payments (with interest adjusted to the Net
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Mortgage Interest Rate) which were due on the Mortgage Loans during the
applicable Collection Period and which were delinquent at the close of business
on the immediately preceding Determination Date. Any amounts held for future
distribution and so used shall be replaced by the Servicer by deposit in the
Collection Account on or before any future Remittance Date if funds in the
Collection Account on such Remittance Date shall be less than remittances to the
Indenture Trustee required to be made on such Remittance Date. The Servicer
shall keep appropriate records of such amounts and will provide such records to
the Securities Administrator upon reasonable request.
The Servicer's obligation to make such Advances as to any Mortgage
Loan will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or through the last Remittance Date prior to the
Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan unless the Servicer deems such Advance
to be a Nonrecoverable Advance, as evidenced by an Officer's Certificate of the
Servicer delivered to the Securities Administrator.
Section 4.04. Due Dates Other Than the First of the Month.
Mortgage Loans having Due Dates other than the first day of a month
shall be accounted for as described in this Section 4.04. Any payment due on a
day other than the first day of each month shall be considered due on the first
day of the month following the month in which that payment is due as if such
payment were due on the first day of said month. For example, a payment due on
August 15 shall be considered to be due on September 1 of said month. Any
payment collected on a Mortgage Loan after the Cut-off Date shall be deposited
in the Collection Account. For Mortgage Loans with Due Dates on the first day of
a month, deposits to the Collection Account begin with the payment due on the
first of the month following the Cut-off Date.
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01. Transfers of Mortgaged Property.
The Servicer shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Servicer shall, to
the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause
applicable thereto, provided, however, that the Servicer shall not exercise such
rights if prohibited by law from doing so or if the exercise of such rights
would impair or threaten to impair any recovery under the related PMI Policy or
LPMI Policy, if any.
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If the Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Servicer has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the seller of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the seller of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Servicer for entering into an assumption
agreement, such fee will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, none of the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan
or the outstanding principal amount of the Mortgage Loan shall be changed.
To the extent that any Mortgage Loan is assumable, the Servicer
shall inquire diligently into the creditworthiness of the proposed transferee,
and shall use the underwriting criteria for approving the credit of the proposed
transferee which are used by the Servicer and its affiliates with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria, the
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
Section 5.02. Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer shall notify the Securities
Administrator in the Remittance Report as provided in Section 4.02, and may
request the release of any Mortgage Loan documents from the Seller in accordance
with this Section 5.02 hereof.
If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage or
should the Servicer otherwise prejudice any rights the Seller, the Indenture
Trustee or the Trust Fund may have under the mortgage instruments, the Servicer
shall deposit into the Collection Account the entire outstanding principal
balance, plus all accrued interest on such Mortgage Loan, on the day preceding
the Remittance Date in the month following the date of such release. The
Servicer shall maintain the Fidelity Bond and Errors and Omissions Insurance
Policy as provided for in Section 3.13 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.03. Servicing Compensation.
As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall retain the relevant Servicing Fee for each
Mortgage Loan remaining subject to this Agreement during any month or part
thereof. Such Servicing Fee shall be payable monthly.
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Additional servicing compensation in the form of Ancillary Income shall be
retained by the Servicer and is not required to be deposited in the Collection
Account. The Servicing Fee is limited to, and is payable solely from, the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds) of such Monthly Payment collected by the Servicer, or as otherwise
provided in Section 3.04. The aggregate Servicing Fees for any month with
respect to the Mortgage Loans shall be reduced by the aggregate Prepayment
Interest Shortfall Amount for such month. The Servicer shall be obligated to pay
the aggregate Prepayment Interest Shortfall Amount for any month up to a maximum
of the aggregate Servicing Fees for such month.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 5.04. Annual Audit Report.
On or before February 28 of each year, beginning with February 28,
20 , the Servicer shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to the Servicer), which is a
member of the American Institute of Certified Public Accountants, to furnish to
the Indenture Trustee, the Securities Administrator and the party required to
provide a certification directly to the Securities and Exchange Commission
pursuant to Xxxxxxxx-Xxxxx (as defined below) (the "Sarbanes Certifying Party")
to the effect that such firm has examined certain documents and records relating
to the servicing of mortgage loans similar in nature to the Mortgage Loans and
that such firm is of the opinion that the provisions of this or similar
Agreements have been complied with, and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers, nothing has come to their attention which would
indicate that such servicing has not been conducted in compliance therewith,
except for (i) such exceptions as such firm shall believe to be immaterial, and
(ii) such other exceptions as shall be set forth in such statement. By providing
the Indenture Trustee and the Sarbanes Certifying Party a copy of a Uniform
Single Attestation Program Report from its independent public accountants on an
annual basis, the Servicer shall be considered to have fulfilled its obligations
under this Section 5.04.
Section 5.05. Annual Officer's Certificate.
(a) The Servicer shall deliver to the Indenture Trustee, the
Securities Administrator and the Sarbanes Certifying Party, on or before
February 28, each year beginning February 28, 20 , an Officer's Certificate,
stating that (i) a review of the activities of the Servicer during the preceding
calendar year and of performance under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Servicer to cure such default.
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(b) For so long as a certificate under the Xxxxxxxx-Xxxxx Act of
2002, as amended ("Xxxxxxxx-Xxxxx") is required to be given on behalf of the
Trust Fund, no later than February 28 of each year beginning February 28, 20 (or
if not a Business Day, the immediately preceding Business Day), or at any other
time that the Sarbanes Certifying Party provides a certification pursuant to
Xxxxxxxx-Xxxxx, and upon thirty (30) days' written request of such certifying
party, an officer of the Servicer shall execute and deliver an Officer's
Certificate to the Sarbanes Certifying Party for the benefit of such Sarbanes
Certifying Party, its officers, directors and affiliates, in the form of Exhibit
E hereto.
Section 5.06. Inspection.
The Servicer shall provide the Indenture Trustee and the Securities
Administrator, upon reasonable advance notice, during normal business hours,
access to all records maintained by the Servicer in respect of its rights and
obligations hereunder and access to officers of the Servicer responsible for
such obligations. Upon request, the Servicer shall furnish to the Indenture
Trustee and the Securities Administrator its most recent publicly available
financial statements and such other information relating to its capacity to
perform its obligations under this Agreement.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Section 6.01. Representations, Warranties and Agreements of the Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Securities Administrator, the Depositor and the Indenture Trustee, as of
the Closing Date:
(a) Due Organization and Authority. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the terms of this Agreement; the Servicer has the full corporate power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by the
Servicer and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Servicer and all requisite corporate action has
been taken by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
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(c) No Conflicts. Neither the execution and delivery of this
Agreement or the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Servicer's charter or by-laws or any legal restriction or any agreement or
instrument to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Servicer or its property is subject, or impair the ability of the
Servicer to service the Mortgage Loans, or impair the value of the Mortgage
Loans;
(d) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which, either in any
one instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in connection
with the obligations of the Servicer contemplated herein, or which would be
likely to impair materially the ability of the Servicer to perform under the
terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement, or if required, such approval has been obtained prior to the
Closing Date;
(g) No Default. The Servicer is not in default, and no event or
condition exists that after the giving of notice or lapse of time or both, would
constitute an event of default under any material mortgage, indenture, contract,
agreement, judgment, or other undertaking, to which the Servicer is a party or
which purports to be binding upon it or upon any of its assets, which default
could impair materially the ability of the Servicer to perform under the terms
of this Agreement;
(h) Ability to Service. The Servicer is an approved seller/servicer
of conventional residential mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac, with
the facilities, procedures and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Servicer
is in good standing to service mortgage loans for either Xxxxxx Mae or Xxxxxxx
Mac, and no event has occurred, including but not limited to a change in
insurance coverage, which would make the Servicer unable to comply with either
Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which would require
notification to either of Xxxxxx Mae or Xxxxxxx Mac;
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(i) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading; and
(j) No Commissions to Third Parties. The Servicer has not dealt with
any broker or agent or anyone else who might be entitled to a fee or commission
in connection with this transaction other than the Seller.
(k) Fair Credit Reporting Act. The Servicer has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
Mortgagor credit files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories) on a monthly basis.
Section 6.02. Remedies for Breach of Representations and Warranties of the
Servicer.
It is understood and agreed that the representations and warranties
set forth in Section 6.01 shall survive the engagement of the Servicer to
perform the servicing responsibilities as of the related Closing Date hereunder
and the delivery of the Servicing Files to the Servicer and shall inure to the
benefit of the Securities Administrator and the Indenture Trustee. Upon
discovery by any of the Servicer, the Securities Administrator or the Indenture
Trustee of a breach of any of the foregoing representations and warranties which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property or the
priority of the security interest on such Mortgaged Property or the interests of
the Securities Administrator or the Indenture Trustee, the party discovering
such breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Servicer of any breach of a representation or warranty set forth in Section
6.01 which materially and adversely affects the ability of the Servicer to
perform its duties and obligations under this Agreement or otherwise materially
and adversely affects the value of the Mortgage Loans, the Mortgaged Property or
the priority of the security interest on such Mortgaged Property, the Servicer
shall use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at the Indenture
Trustee's or the Securities Administrator's option, assign the Servicer's rights
and obligations under this Agreement (or respecting the affected Mortgage Loans)
to a successor servicer. Such assignment shall be made in accordance with
Sections 8.01 and 8.02.
In addition, the Servicer shall indemnify the Securities
Administrator and the Indenture Trustee and hold each of them harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Servicer's representations and warranties
contained in Section 6.01.
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Any cause of action against the Servicer relating to or arising out
of the breach of any representations and warranties made in Section 6.01 shall
accrue upon (i) discovery of such breach by the Servicer or notice thereof by
the Securities Administrator, the Depositor or the Indenture Trustee to the
Servicer, (ii) failure by the Servicer to cure such breach within the applicable
cure period, and (iii) demand upon the Servicer by the Securities Administrator
or the Indenture Trustee for compliance with this Agreement.
Section 6.03. Additional Indemnification by the Servicer.
The Servicer shall indemnify the Securities Administrator, the
Depositor, the Indenture Trustee and the Trust Fund and hold each of them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses (collectively, the "Liabilities") that
the indemnified party may sustain in any way related to the failure of the
Servicer to perform its duties and service the Mortgage Loans in accordance with
the terms of this Agreement. The Servicer shall immediately notify the
Securities Administrator, the Depositor and the Indenture Trustee if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans that
may result in such Liabilities, and the Servicer shall assume (with the prior
written consent of the indemnified party, which consent will not be unreasonably
withheld or delayed) the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or any
indemnified party in respect of such claim and follow any written instructions
received from the such indemnified party in connection with such claim. The
Servicer shall be reimbursed promptly from the Trust Fund for all amounts
advanced by it pursuant to the preceding sentence except when the claim is in
any way related to the Servicer's indemnification pursuant to Section 6.02, or
the failure of the Servicer to service and administer the Mortgage Loans in
accordance with the terms of this Agreement. In the event a dispute arises
between the Servicer and an indemnified party with respect to any of the rights
and obligations of the parties pursuant to this Agreement, and such dispute is
adjudicated in a court of law, by an arbitration panel or any other judicial
process, then the losing party (if the Indenture Trustee or Securities
Administrator, then the Trust Fund) shall indemnify and reimburse the winning
party for all attorney's fees and other costs and expenses related to the
adjudication of said dispute.
Section 6.04. Indemnification with Respect to Certain Taxes.
In the event that the Trust Fund incurs federal, state or local
taxes due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the Noteholders, the
Certificateholders, the Securities Administrator, the Indenture Trustee and the
Trust Fund against any and all losses, claims, damages, liabilities or expenses
("Losses") resulting from such negligence; provided, however, that the Servicer
shall not be liable for any such Losses attributable to the action or inaction
of the Indenture Trustee, the Securities Administrator, the Depositor, the
Noteholders, the Certificateholders, as applicable, nor for any such Losses
resulting from misinformation provided by the Noteholders on which the Servicer
has relied. The foregoing shall not be deemed to limit or restrict the rights
and remedies of the Noteholders, Certificateholders, the Securities
Administrator, the Indenture Trustee and the Trust Fund now or hereafter
existing at law or in equity or otherwise.
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Notwithstanding the foregoing, however, in no event shall the Servicer have any
liability (1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Servicer of its duties and obligations set forth
herein, (3) for any special or consequential damages to Certificateholders or
Noteholders (in addition to payment of principal and interest on the Notes) and
(4) if actions taken by the Servicer are at, and in accordance with, the written
request or written approval of the Securities Administrator or the Indenture
Trustee.
ARTICLE VII.
THE SERVICER
Section 7.01. Merger or Consolidation of the Servicer.
Subject to the second paragraph hereof, the Servicer shall keep in
full effect its existence, rights and franchises as a corporation, and shall
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the Mortgage
Loans and to perform its duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation, national banking association or other entity resulting from any
merger, conversion or consolidation to which the Servicer shall be a party, or
any Person succeeding to the business of the Servicer, shall be the successor of
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, provided, however, that the successor or surviving
Person shall be an institution (i) having a net worth of not less than
$25,000,000, and (ii) which is a Xxxxxx Mae- and Xxxxxxx Mac-approved servicer
in good standing.
Section 7.02. Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees
or agents of the Servicer shall be under any liability to the Securities
Administrator, the Depositor, the Trust Fund or the Indenture Trustee for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Servicer may undertake any such action which it may
deem
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necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto. In such event, the Servicer shall be entitled to
reimbursement from the Trust Fund for the reasonable legal expenses and costs of
such action.
Section 7.03. Limitation on Resignation and Assignment by the Servicer.
This Agreement has been entered into with the Servicer in reliance
upon the independent status of the Servicer, and the representations as to the
adequacy of its servicing facilities, plant, personnel, records and procedures,
its integrity, reputation and financial standing, and the continuance thereof.
Therefore, except as expressly provided in this Section 7.03 and Section 7.01,
the Servicer shall neither assign its rights under this Agreement or the
servicing hereunder nor delegate its duties hereunder or any portion thereof, or
sell or otherwise dispose of all or substantially all of its property or assets
without, in each case, the prior written consent of the Seller, the Securities
Administrator and the Indenture Trustee, which consent, in the case of an
assignment of rights or delegation of duties, shall be granted or withheld in
the discretion of the Seller, the Securities Administrator and the Indenture
Trustee and which consent, in the case of a sale or disposition of all or
substantially all of the property or assets of the Servicer, shall not be
unreasonably withheld by any of them; provided that in each case, there must be
delivered to the Seller, the Securities Administrator and the Indenture Trustee
a letter from each Rating Agency to the effect that such transfer of servicing
or sale or disposition of assets will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Notes. Notwithstanding the
foregoing, the Servicer, without the consent of the Seller, the Securities
Administrator or the Indenture Trustee, may retain third party contractors to
perform certain servicing and loan administration functions, including without
limitation, hazard insurance administration, tax payment and administration,
flood certification and administration, collection services and similar
functions; provided that the retention of such contractors by the Servicer shall
not limit the obligation of the Servicer to service the Mortgage Loans pursuant
to the terms and conditions of this Agreement.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer, the Securities
Administrator and the Indenture Trustee or upon the determination that its
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by the Servicer. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Seller, the Securities Administrator and the
Indenture Trustee, which Opinion of Counsel shall be in form and substance
reasonably acceptable to each of them. No such resignation shall become
effective until a successor shall have assumed the Servicer's responsibilities
and obligations hereunder in the manner provided in Section 8.01.
Without in any way limiting the generality of this Section 7.03, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, except to the extent permitted by and in accordance with this Section
7.03 and Section 7.01, without the prior written consent of the Seller, the
Securities Administrator and the Indenture Trustee, then such parties shall have
the right to
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terminate this Agreement upon notice given as set forth in Section 8.01, without
any payment of any penalty or damages and without any liability whatsoever to
the Servicer or any third party.
ARTICLE VIII.
TERMINATION
Section 8.01. Termination for Cause.
(a) Any of the following occurrences shall constitute an event of
default (each, an "Event of Default") on the part of the Servicer:
(i) any failure by the Servicer to remit to the Indenture
Trustee any payment, including but not limited to any Advances, required to be
made under the terms of this Agreement which continues unremedied for a period
of two (2) Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Indenture Trustee; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement which continues unremedied for a period of
thirty (30) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Securities Administrator or Indenture Trustee; or
(iii) failure by the Servicer to maintain any required license
to do business in any jurisdiction where the Mortgaged Properties are located;
or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for three Business Days; or
(vii) the Servicer ceases to meet the qualifications of a
Xxxxxx Xxx or Xxxxxxx Mac servicer; or
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(viii) the Servicer attempts to assign the servicing of the
Mortgage Loans or its right to servicing compensation hereunder or the Servicer
attempts to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof in a manner
not permitted under this Agreement; or
(ix) if any of the Rating Agencies reduces or withdraws the
rating of any of the Notes due to a reason attributable to the Servicer; or
(x) the net worth of the Servicer shall be less than
$25,000,000.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatsoever rights the Securities
Administrator or the Indenture Trustee may have at law or equity to damages,
including injunctive relief and specific performance, the Securities
Administrator, by notice in writing to the Servicer, may terminate all the
rights and obligations of the Servicer under this Agreement and in and to the
servicing contract established hereby and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in a successor servicer
appointed by the Securities Administrator. Upon written request from the
Securities Administrator, the Servicer shall prepare, execute and deliver to the
successor entity designated by the Securities Administrator any and all
documents and other instruments, place in such successor's possession all
Servicing Files, and deliver to the Custodian the Retained Servicing Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited to
the transfer and endorsement or assignment of the Mortgage Loans and related
documents, at the Servicer's sole expense. The Servicer shall cooperate with the
Seller, the Securities Administrator, the Indenture Trustee and such successor
in effecting the termination of the Servicer's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Servicer to the Collection Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
By a written notice, the Securities Administrator, with the consent
of the other parties, may waive any default by the Servicer in the performance
of its obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
Section 8.02. Termination Without Cause.
This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last Mortgage
Loan to the Indenture Trustee (or advances by the Servicer for the same), and
(b) the disposition of all REO Property acquired upon foreclosure of the last
Mortgage Loan and the remittance of all funds due hereunder, or (ii)
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mutual consent of the Servicer, the Seller and the Securities Administrator in
writing provided such termination is also acceptable to the Rating Agencies or
(iii) with respect to some or all of the Mortgage Loans, at the sole option of
the Depositor, without cause, upon 60 days written notice. Any such notice of
termination shall be in writing and delivered to the Indenture Trustee, the
Securities Administrator and the Servicer by registered mail to the address set
forth in Section 9.04 of this Agreement. The Servicer shall comply with the
termination procedures set forth in Sections 8.01, 8.02 and 9.01 hereof.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01. Successor to the Servicer.
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement (a) pursuant to Sections 6.02,
6.04, 7.03, 8.01 or 8.02, the Securities Administrator shall (i) within 90 days
of the Servicer's notice of such termination, succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth in
clauses (i) and (ii) of Section 7.01 and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer under
this Agreement simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement; or (b) pursuant
to a termination under Section 8.02(iii), the Depositor shall appoint a
successor having the characteristics set forth in clauses (i) and (ii) of
Section 7.01 and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
simultaneously with the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement. Any successor to the Servicer shall be
subject to the approval of the Securities Administrator. Any approval of a
successor servicer by the Securities Administrator and, to the extent required
by the Indenture, the Indenture Trustee, shall, if the successor servicer is not
at that time a servicer of other Mortgage Loans for the Trust Fund, be
conditioned upon the receipt by the Securities Administrator, the Depositor and
the Indenture Trustee of a letter from each Rating Agency to the effect that
such transfer of servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Notes. In connection with
such appointment and assumption, the Securities Administrator or the Depositor,
as applicable, may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree,
provided, however, that no such compensation shall be in excess of that
permitted the Servicer under this Agreement. In the event that the Servicer's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 9.01 and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Sections 6.01 and the remedies available to the Securities
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Administrator, the Indenture Trustee and the Depositor under Sections 6.02, 6.03
and 6.04, it being understood and agreed that the provisions of such Sections
6.01, 6.02, 6.03 and 6.04 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer, or the termination of this
Agreement. Neither the Securities Administrator, in its capacity as successor
servicer, nor any other successor servicer shall be responsible for the lack of
information and/or documents that it cannot otherwise obtain through reasonable
efforts.
Within a reasonable period of time, but in no event longer than 90
days following notice of termination pursuant to Section 8.02(iii) or 30 days
following notice of termination pursuant to Sections 8.01 or 8.02(ii), the
Servicer shall prepare, execute and deliver to the successor entity any and all
documents and other instruments, place in such successor's possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer of any Mortgage Notes and the related documents.
Within 60 days of a Document Transfer Event, the Servicer shall, pursuant to
section 2.01, deliver the Retained Mortgage Files to the Indenture Trustee (or
its Custodian). The Servicer shall cooperate with the Indenture Trustee, the
Securities Administrator, the Custodian or the Depositor, as applicable, and
such successor in effecting the termination of the Servicer's responsibilities
and rights hereunder and the transfer of servicing responsibilities to the
successor Servicer, including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Collection Account, Subsidy Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Indenture Trustee, the Servicer, the Securities
Administrator and the Depositor an instrument (i) accepting such appointment,
wherein the successor shall make the representations and warranties set forth in
Section 6.01 and provide for the same remedies set forth in Sections 6.02, 6.03
and 6.04 herein and (ii) an assumption of the due and punctual performance and
observance of each covenant and condition to be performed and observed by the
Servicer under this Agreement, whereupon such successor shall become fully
vested with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement. Any termination or resignation of the Servicer or termination
of this Agreement pursuant to Sections 6.02, 7.03, 8.01 or 8.02 shall not affect
any claims that the Seller, the Securities Administrator or the Indenture
Trustee may have against the Servicer arising out of the Servicer's actions or
failure to act prior to any such termination or resignation. In addition, in the
event any successor servicer is appointed pursuant to Section 8.02(iii) of this
Agreement, such successor servicer must satisfy the conditions relating to the
transfer of servicing set forth in the Trust Agreement.
The Servicer shall deliver promptly to the successor servicer the
funds in the Collection Account, Subsidy Account and Escrow Account and all
Mortgage Loan documents and related documents and statements held by it
hereunder and the Servicer shall account for all funds and shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and definitively vest in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer.
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Upon a successor's acceptance of appointment as such, it shall
notify the Indenture Trustee, the Securities Administrator and the Depositor of
such appointment in accordance with the procedures set forth in Section 9.04.
Section 9.02. Costs.
The Depositor shall pay the legal fees and expenses of its
attorneys. Costs and expenses incurred by any party hereto in connection with
the transfer of the servicing responsibilities, including fees for delivering
Servicing Files or Retained Mortgage Files, shall be paid by (i) the terminated
or resigning servicer if such termination or resignation is a result of an
occurrence of a termination event under Section 8.01 and (ii) the Depositor if
such termination is pursuant to Section 8.02(iii) and (iii) in all other cases
by the Trust Fund.
Section 9.03. Protection of Confidential Information.
The Servicer shall keep confidential and shall not divulge to any
party, without the Depositor's prior written consent, any nonpublic information
pertaining to the Mortgage Loans or any borrower thereunder, except to the
extent that it is appropriate for the Servicer to do so in working with legal
counsel, auditors, taxing authorities or other governmental agencies.
Section 9.04. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed by overnight
courier, addressed as follows (or such other address as may hereafter be
furnished to the other party by like notice):
if to the Depositor:
Xxxxx Fargo Asset Securities Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
(i) if to the Seller or Servicer:
Xxxxx Fargo Home Mortgage, Inc.
MAC X2401 000
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
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Xxxxx Fargo Home Mortgage, Inc.
MAC X2401 06T
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to the Securities Administrator:
Xxxxx Fargo Bank, N.A.
P. O. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: [___________]
(or in the case of overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 21045)
Telephone (000) 000-0000
Facsimile: (000) 000-0000
(iii) if to the Indenture Trustee:
[____________________]
Any such demand, notice or communication hereunder shall be deemed
to have been received on the date delivered to or received at the premises of
the addressee.
Section 9.05. Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
-43-
Section 9.06. No Personal Solicitation.
From and after the Closing Date, the Servicer agrees that it will
not take any action or permit or cause any action to be taken by any of its
agents and Affiliates, or by any independent contractors or independent mortgage
brokerage companies on the Servicer's behalf, to personally, by telephone, mail
or electronic mail, solicit the Mortgagor under any Mortgage Loan for the
purpose of refinancing such Mortgage Loan; provided, that the Servicer may
solicit any Mortgagor for whom the Servicer has received a request for
verification of mortgage, a request for demand for payoff, a mortgagor initiated
written or verbal communication indicating a desire to prepay the related
Mortgage Loan, or the mortgagor initiates a title search; provided further, it
is understood and agreed that promotions undertaken by the Servicer or any of
its Affiliates which (i) concern optional insurance products or other additional
products or (ii) are directed to the general public at large, including, without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section, nor is the Servicer prohibited from responding to
unsolicited requests or inquiries made by a Mortgagor or an agent of a
Mortgagor. Furthermore, the Servicer shall be permitted to include in its
monthly statements to borrowers or otherwise, statements regarding the
availability of the Servicer's counseling services with respect to refinancing
mortgage loans.
Section 9.07. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 9.08. Place of Delivery and Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Depositor in the State of New York and
shall be deemed to have been made in the State of New York. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.09. Further Agreements.
The Depositor and Servicer each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 9.10. Intention of the Parties.
It is the intention of the parties that the Depositor is conveying,
and the Servicer is receiving only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby
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acknowledge that the Issuer remains the sole and absolute pledgee of the
Mortgage Loans (other than the servicing rights) and all rights related thereto.
Section 9.11. Successors and Assigns; Assignment of Servicing Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, the Seller and the Securities Administrator and
their respective successors and assigns. This Agreement shall not be assigned,
pledged or hypothecated by the Servicer to a third party except in accordance
with Section 7.03.
Section 9.12. Assignment by the Depositor.
The Depositor shall assign (exclusive of the Depositor's rights and
obligations, as owner of the servicing rights relating to the Mortgage Loans
arising under Sections 8.02(iii) or 8.04), its interest under this Agreement to
Indenture Trustee, and the Indenture Trustee then shall succeed to all rights of
the Depositor under this Agreement.
Section 9.13. Amendment.
This Agreement may be amended from time to time by the Servicer and
the Depositor, with (i) the prior written consent of the Indenture Trustee and
(ii) the written agreement signed by the Securities Administrator, the Depositor
and the Servicer; provided that the party requesting such amendment shall, at
its own expense, provide the Indenture Trustee, the Securities Administrator and
the Depositor with an Opinion of Counsel that such amendment will not materially
adversely affect the interest of the Noteholders in the Mortgage Loans. Any such
amendment shall be deemed not to adversely affect in any material respect any
the interest of the Noteholders in the Mortgage Loans, if the Indenture Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to the Notes (and any Opinion of Counsel received by the
Indenture Trustee, the Securities Administrator and the Seller in connection
with any such amendment may rely expressly on such confirmation as the basis
therefore).
Section 9.14. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 9.15. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 9.16. Intended Third Party Beneficiaries.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent of
such parties as set forth
-45-
herein, that the Indenture Trustee receive the benefit of the provisions of this
Agreement as an intended third party beneficiary of this Agreement to the extent
of such provisions. The Servicer shall have the same obligations to the
Indenture Trustee as if it were a party to this Agreement, and the Indenture
Trustee shall have the same rights and remedies to enforce the provisions of
this Agreement as if it were a party to this Agreement. The Servicer shall only
take direction from the Securities Administrator (if direction by the Securities
Administrator is required under this Agreement) unless otherwise directed by
this Agreement. Notwithstanding the foregoing, all rights and obligations of the
Indenture Trustee and the Securities Administrator hereunder (other than the
right to indemnification) shall terminate upon the termination of the Trust Fund
pursuant to the Trust Agreement.
Section 9.17. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean by reason of
enumeration.
Section 9.18. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
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IN WITNESS WHEREOF, the Servicer, the Depositor and the Securities
Administrator have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the date first above written.
Xxxxx Fargo Home Mortgage, Inc.,
as Servicer
By:____________________________________
Name:
Title:
Xxxxx Fargo ASSET SECURITIES
CORPORATION,
as Depositor
By:____________________________________
Name:
Title:
XXXXX FARGO BANK, National Association,
as Securities Administrator
By:____________________________________
Name:
Title:
Acknowledged by:
[________________________]
as Indenture Trustee
By:___________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Including Prepayment Charge Schedule)
A-1
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Custodial File, Retained Mortgage
File and Servicing File shall include, as applicable, each of the following
items, each of which shall be available for inspection by the Indenture Trustee,
and each of which shall be retained by the Servicer in the Retained Mortgage
File or Servicing File or delivered to the Custodian pursuant to Section 2.01 of
this Agreement and Section 1 of the Mortgage Loan Purchase Agreement:
With respect to each Custodial File:
1. The original Mortgage Note, endorsed without recourse either (A) in
blank or (B) in the form of the Form of Endorsement set forth in Exhibit B-6 of
the Custodial Agreement (in each case, with all necessary intervening
endorsements, as applicable), or with respect to any lost Mortgage Note, an
original Lost Note Affidavit, substantially in the form set forth in Exhibit B-5
of the Custodial Agreement, stating that the original Mortgage Note was lost,
misplaced or destroyed, together with a copy of the related Mortgage Note.
2. The original of any guarantee executed in connection with the Mortgage
Note assigned to the Indenture Trustee.
3. The original or copies of each assumption, modification, written
assurance or substitution agreement, if any, or as to any such agreement which
cannot be delivered prior to the Closing Date because of a delay caused by the
public recording office where such assumption, modification or substitution
agreement has been delivered for recordation, a photocopy of such assumption,
modification or substitution agreement, pending delivery of the original
thereof, together with an Officer's Certificate of the Depositor certifying that
the copy of such assumption, modification or substitution agreement delivered to
the Custodian is a true copy and that the original of such agreement has been
forwarded to the public recording office.
4. With respect to each Non-MERS Mortgage Loan other than a Cooperative
Loan, an original Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned either (A) in blank, without recourse
or (B) to "[______________], as Indenture Trustee for Xxxxx Fargo Home Equity
Asset-Backed Securities 20 - Trust, Home Equity Asset-Backed Notes, Series 20 -
," without recourse.
B-1
With respect to each Retained Mortgage File:
5. With respect to any Mortgage Loan other than a Cooperative Loan, the
original recorded Mortgage with evidence of recording thereon, and the original
recorded power of attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon or, if such Mortgage or power of
attorney has been submitted for recording but has not been returned from the
applicable public recording office, has been lost or is not otherwise available,
a copy of such Mortgage or power of attorney, as the case may be, certified by
an Officer's Certificate of the Seller to be a true and complete copy of the
original submitted for recording, together with a written Opinion of Counsel for
the Depositor acceptable to the Indenture Trustee that an original recorded
Mortgage is not required to enforce the Indenture Trustee's interest in the
Mortgage Loan.
6. If applicable, such original intervening assignments of Mortgage,
notices of transfer or equivalent instruments (each, an "Intervening
Assignment"), as may be necessary to show a complete chain of assignment from
the originator or, in the case of an Intervening Assignment that has been lost,
a written Opinion of Counsel acceptable to the Indenture Trustee that such
original Intervening Assignment is not required to enforce the Indenture
Trustee's interest in the Mortgage Loan.
7. With respect to any Mortgage Loan other than a Cooperative Loan, the
original or a certified copy of lender's title insurance policy (or, in lieu
thereof, a commitment to issue such title insurance policy, with an original or
certified copy of such title insurance policy to follow as soon after the
Closing Date as reasonably practicable).
8. The original LPMI Policy or PMI Policy or certificate or, an electronic
certification evidencing the existence of the LPMI Policy or PMI Policy or
certificate, if private mortgage guaranty insurance is required.
9. The original of any security agreement or equivalent instrument
executed in connection with the Mortgage or as to any security agreement or
equivalent instrument that cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such document has
been delivered for recordation, a photocopy of such document, pending delivery
of the original thereof, together with an Officer's Certificate of the Seller
certifying that the copy of such security agreement, chattel mortgage or their
equivalent delivered to the Custodian is a true copy and that the original of
such document has been forwarded to the public recording office.
10. [Reserved].
11. With respect to any manufactured housing contract, any related
manufactured housing sales contract, installment loan agreement or participation
interest.
B-2
With respect to each Mortgage Loan, the Servicing File shall include each
of the following items to the extent required by the Seller's underwriting
guidelines:
12. The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with this Agreement.
13. Residential loan application.
14. Mortgage Loan closing statement.
15. Verification of employment and income, unless originated under the
Seller's Limited Documentation program, Xxxxxx Xxx Timesaver Plus.
16. Verification of acceptable evidence of source and amount of down
payment.
17. Credit report on the Mortgagor.
18. Residential appraisal report.
19. Photograph of the Mortgaged Property.
20. Survey of the Mortgage property, if required by the title company or
applicable law.
21. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e. map or
plat, restrictions, easements, sewer agreements, home association declarations,
etc.
22. All required disclosure statements.
23. If available, termite report, structural engineer's report, water
potability and septic certification.
24. Sales contract, if applicable.
25. Evidence of payment of taxes and insurance premiums, insurance claim
files, correspondence, current and historical computerized data files, and all
other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
26. Amortization schedule, if available.
27. Payment history for any Mortgage Loan that has been closed for more
than 90 days.
In the event an Officer's Certificate of the Seller is delivered to the
Custodian because of a delay caused by the public recording office in returning
any recorded document, the Seller shall deliver
B-3
to the Custodian, within 240 days of the Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused by
the public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Seller shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
B-4
EXHIBIT C
COLLECTION ACCOUNT CERTIFICATION
_____________ __, ____
Xxxxx Fargo Home Mortgage, Inc. hereby certifies that it has
established the account described below as a Collection Account pursuant to
Section 3.03 of the Servicing Agreement, dated as of [__________], 20 .
Title of Account: "Xxxxx Fargo Home Mortgage, Inc. in trust for
[______________], as Indenture Trustee for Xxxxx Fargo Home
Equity Asset-Backed Securities 20 - Trust, Home Equity
Asset-Backed Notes, Series 20 - ."
Account Number: ______________________.
Address of office or
branch of the Servicer at
which account is
maintained:
____________________________________________
____________________________________________
Xxxxx Fargo Home Mortgage, Inc.
Servicer
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
C-1
D-1
EXHIBIT D
ESCROW ACCOUNT CERTIFICATION
_____________ ___, ____
Xxxxx Fargo Home Mortgage, Inc. hereby certifies that it has
established the account described below as an Escrow Account pursuant to Section
3.03 of the Servicing Agreement, dated as of [________], 20 .
Title of Account: "Xxxxx Fargo Home Mortgage, Inc. in trust for
[______________], as Indenture Trustee for Xxxxx Fargo Home
Equity Asset-Backed Securities 20 - Trust, Home Equity
Asset-Backed Notes, Series 20 - ."
Account Number: ______________________.
Address of office or
branch of the Servicer at
which account is
maintained:
____________________________________________
____________________________________________
Xxxxx Fargo Home Mortgage, Inc.
Servicer
By:____________________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
D-1
EXHIBIT E
FORM OF CERTIFICATION
I, _____________, Vice President of Xxxxx Fargo Home Mortgage, Inc. (the
"Servicer"), certify to [identify the company submitting to SEC], and its
officers, directors, agents and affiliates (in its role as [identify role] the
"Sarbanes Certifying Party"), and with the knowledge and intent that they will
rely upon this certification, that:
(1) Based on my knowledge, the information relating to the
Mortgage Loans and the servicing thereof submitted by the Servicer to the
Sarbanes Certifying Party which is used in connection with preparation of the
reports on Form 8-K and the annual report on Form 10-K filed with the SEC with
respect to each transaction listed on the attached Exhibit A, 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) The servicing information required to be provided to the
Sarbanes Certifying Party by the Servicer under the relevant servicing
agreements has been provided to the Sarbanes Certifying Party;
(3) I am responsible for reviewing the activities performed by the
Servicer under the relevant servicing agreements and based upon the review
required by the relevant servicing agreements, and except as disclosed in the
Annual Statement of Compliance, the Annual Independent Public Accountant's
Servicing Report and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans submitted to the
Sarbanes Certifying Party, the Servicer has, as of the date of this
certification fulfilled its obligations under the relevant servicing agreements;
and
(4) I have disclosed to the Sarbanes Certifying Party all
significant deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar standard as
set forth in the relevant servicing agreements.
The Servicer shall indemnify and hold harmless the Sarbanes
Certifying Party and its officers, directors, agents and affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors, agents or
affiliates of its obligations under this Certification or the negligence, bad
faith or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Sarbanes Certifying Party, then the Servicer agrees that it shall
contribute to the amount paid or payable by the Sarbanes Certifying Party as a
result of the losses, claims, damages or liabilities of the Sarbanes Certifying
Party in such proportion as is appropriate to reflect the relative fault of the
Sarbanes Certifying Party on the
E-1
one hand and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Certification or the Servicer's negligence,
bad faith or willful misconduct in connection therewith.
E-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Servicer.
Dated: ___________________________ By: __________________________________
Name: ________________________________
Title: _______________________________
E-3