WELLS FARGO BANK, N.A., as Master Servicer and Securities Administrator OCWEN LOAN SERVICING, LLC as Servicer RENAISSANCE HOME EQUITY LOAN TRUST 2006-2, as Issuer and HSBC BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee SERVICING AGREEMENT Dated...
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer and Securities Administrator
OCWEN
LOAN SERVICING, LLC
as
Servicer
as
Issuer
and
HSBC
BANK
USA, NATIONAL ASSOCIATION,
as
Indenture Trustee
_____________________________
Dated
as
of June 29, 2006
_____________________________
Mortgage
Loans
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Definitions.
|
|
Section
1.02.
|
Other
Definitional Provisions.
|
|
Section
1.03.
|
Interest
Calculations..
|
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
|
Section
2.01.
|
Representations,
Warranties and Covenants Regarding the Servicer and the Master
Servicer.
|
|
Section
2.02.
|
Existence..
|
|
Section
2.03.
|
Enforcement
of Representations and Warranties.
|
ARTICLE
III ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
3.01.
|
The
Servicer.
|
|
Section
3.02.
|
Collection
of Certain Mortgage Loan Payments.
|
|
Section
3.03.
|
Withdrawals
from the Collection Account.
|
|
Section
3.04.
|
Maintenance
of Hazard Insurance; Property Protection Expenses.
|
|
Section
3.05.
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
|
Section
3.06.
|
Management
and Realization Upon Defaulted Mortgage Loans.
|
|
Section
3.07.
|
Indenture
Trustee to Cooperate.
|
|
Section
3.08.
|
Servicing
Compensation; Payment of Certain Expenses by Servicer.
|
|
Section
3.09.
|
Statement
as to Compliance.
|
|
Section
3.10.
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.11.
|
Maintenance
of Certain Servicing Insurance Policies.
|
|
Section
3.12.
|
Exchange
Commission Filings; Additional Information.
|
|
Section
3.13.
|
Compensating
Interest.
|
|
Section
3.14.
|
Advances
by the Servicer.
|
|
Section
3.15.
|
Optional
Purchase of Defaulted Mortgage Loans.
|
|
Section
3.16.
|
Superior
Liens.
|
|
Section
3.17.
|
Assumption
Agreements.
|
|
Section
3.18.
|
Payment
of Taxes, Insurance and Other Charges.
|
|
Section
3.19.
|
Advance
Facility.
|
|
Section
3.20.
|
Covenants
of the Servicer Regarding Prepayment Charges.
|
|
Section
3.21.
|
Non-Solicitation.
|
|
Section
3.22.
|
Reports
to Securities Administrator.
|
|
Section
3.23.
|
Reports
of Foreclosures and Abandonments of Mortgaged Properties, Returns
Relating
to Mortgage Interest Received from Individuals and Returns Relating
to
Cancellation of Indebtedness.
|
ARTICLE
IV
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER
SERVICER
|
Section
4.01.
|
Master
Servicer.
|
|
Section
4.02.
|
Reserved.
|
|
Section
4.03.
|
Monitoring
of Servicer.
|
|
Section
4.04.
|
Fidelity
Bond.
|
|
Section
4.05.
|
Power
to Act; Procedures.
|
|
Section
4.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
4.07.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
|
Section
4.08.
|
Possession
of Certain Insurance Policies and Documents.
|
|
Section
4.09.
|
Compensation
for the Master Servicer.
|
|
Section
4.10.
|
Reserved.
|
|
Section
4.11.
|
Reserved.
|
|
Section
4.12.
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
Section
4.13.
|
Monthly
Advances by the Master Servicer.
|
|
Section
4.14.
|
Merger
or Consolidation.
|
|
Section
4.15.
|
Resignation
of Master Servicer.
|
|
Section
4.16.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
|
Section
4.17.
|
Foreclosure
Rights.
|
ARTICLE
V
THE MASTER SERVICER AND THE SERVICER
|
Section
5.01.
|
Liability
of the Master Servicer and the Servicer.
|
|
Section
5.02.
|
Merger
or Consolidation of, or Assumption of the Obligations of the
Servicer.
|
|
Section
5.03.
|
Limitation
on Liability of the Servicer, the Master Servicer and
Others.
|
|
Section
5.04.
|
Servicer
Not to Resign; Pledge of Servicing Rights.
|
|
Section
5.05.
|
Delegation
of Duties.
|
|
Section
5.06.
|
Indemnification
of the Trust by the Servicer and the Master Servicer.
|
ARTICLE
VI DEFAULT
|
Section
6.01.
|
Servicer
Events of Default.
|
|
Section
6.02.
|
Appointment
of Successor Servicer.
|
|
Section
6.03.
|
Master
Servicer Events of Default.
|
|
Section
6.04.
|
Appointment
of Successor Master Servicer.
|
|
Section
6.05.
|
Waiver
of Defaults.
|
|
Section
6.06.
|
Notification
to Noteholders.
|
ARTICLE
VII MISCELLANEOUS
PROVISIONS
|
Section
7.01.
|
Amendment.
|
|
Section
7.02.
|
GOVERNING
LAW.
|
|
Section
7.03.
|
Notices.
|
|
Section
7.05.
|
Severability
of Provisions..
|
|
Section
7.06.
|
Third-Party
Beneficiaries..
|
|
Section
7.07.
|
Counterparts.
|
|
Section
7.08.
|
Effect
of Headings and Table of Contents..
|
|
Section
7.09.
|
Termination.
|
|
Section
7.10.
|
No
Petition.
|
|
Section
7.11.
|
No
Recourse.
|
|
Section
7.12.
|
Indenture
Trustee Rights..
|
|
Section
7.13.
|
Waiver
of Jury Trial.
|
|
Section
7.14.
|
No
Recourse to Owner Trustee.
|
|
Section
7.15.
|
Intention
of the Parties and Interpretation.
|
EXHIBITS
|
Exhibit
A
|
Mortgage
Loan Schedule
|
|
Exhibit
B
|
Form
of Request for Release of Documents
|
|
Exhibit
C-1
|
Form
of Certification to be Provided by the Master Servicer with Form
10-K
|
|
Exhibit
C-2
|
Reserved.
|
|
Exhibit
C-3
|
Form
of Certification to be Provided to the Master Servicer by the
Servicer
|
|
Exhibit
D
|
Calculation
of Realized Loss/Gain Form 332
|
|
Exhibit
E
|
Standard
File Layout - Scheduled/Scheduled
|
|
Exhibit
F
|
Standard
File Layout - Delinquency Reporting
|
|
Exhibit
G
|
Form
of Mortgage Loan Sale and Contribution Agreement
|
|
Exhibit
H
|
List
of Appraisal Firms
|
|
Exhibit
I
|
Annual
Statement of Compliance Pursuant to Section 3.09
|
|
Exhibit
J
|
Servicing
Criteria to be Addressed in Assessment of Compliance
|
|
Exhibit
K
|
Additional
Disclosure Notification
|
|
Exhibit
L
|
Form
10-D Reporting Responsibility
|
|
Exhibit
M
|
Form
8-K Reporting Responsibility
|
|
Exhibit
N
|
Form
10-K Reporting
Responsibility
|
This
Servicing Agreement, dated as of June 29, 2006, among Xxxxx Fargo Bank, N.A.,
as
Master Servicer and Securities Administrator (the “Master Servicer” and the
“Securities Administrator”), Ocwen Loan Servicing, LLC or its successor, as
Servicer (the “Servicer”), Renaissance Home Equity Loan Trust 2006-2, as Issuer
(the “Issuer”) and HSBC Bank USA, National Association, as Indenture Trustee
(the “Indenture Trustee”).
W
I T N E
S S E T H T
H A T
:
WHEREAS,
pursuant to the terms of the Mortgage Loan Sale and Contribution Agreement,
dated June 29, 2006 (the “Mortgage Loan Sale and Contribution Agreement”), among
Delta Funding Corporation, as Originator, Renaissance REIT Investment Corp.,
as
Seller and the Depositor, as Purchaser, the Depositor will acquire the Mortgage
Loans;
WHEREAS,
the Depositor will create Renaissance Home Equity Loan Trust 2006-2, a Delaware
statutory trust, and will transfer the Mortgage Loans and all of its rights
under the Mortgage Loan Sale and Contribution Agreement to the
Issuer;
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement, dated as
of
June 29, 2006 (the “Trust Agreement”), among the Depositor, as depositor,
Wilmington Trust Company, as owner trustee (the “Owner Trustee”) and Xxxxx Fargo
Bank, N.A., as certificate registrar and certificate paying agent, the Depositor
will convey the Mortgage Loans to the Issuer in exchange for the Certificates
(as defined below);
WHEREAS,
pursuant to the terms of the Trust Agreement, the Issuer will issue and transfer
to or at the direction of the Depositor, the Trust Certificates, Series 2006-2
(the “Certificates”);
WHEREAS,
pursuant to the terms of an Indenture dated as of June 29, 2006 (the
“Indenture”) among the Issuer, the Indenture Trustee and the Securities
Administrator, the Issuer will pledge the Mortgage Loans to the Indenture
Trustee and issue and transfer to or at the direction of the Purchaser the
Home
Equity Loan Asset-Backed Notes, Series 2006-2 (collectively, the “Notes”);
and
WHEREAS,
pursuant to the terms of this Servicing Agreement, the Servicer will service
the
Mortgage Loans set forth on the Mortgage Loan Schedule attached hereto as
Exhibit A directly or through one or more Sub-Servicers and the Master Servicer
will provide master servicing functions;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
For all
purposes of this Servicing Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
contained in Appendix A to the Indenture which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section
1.02. Other
Definitional Provisions.
(a) All
terms
defined in this Servicing Agreement shall have the defined meanings when used
in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Servicing Agreement shall refer to this Servicing Agreement as a whole and
not
to any particular provision of this Servicing Agreement; Section and Exhibit
references contained in this Servicing Agreement are references to Sections
and
Exhibits in or to this Servicing Agreement unless otherwise specified; and
the
term “including” shall mean “including without limitation”.
(c) The
definitions contained in this Servicing Agreement are applicable to the singular
as well as the plural forms of such terms and to the masculine as well as the
feminine and neuter genders of such terms.
(d) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
Section
1.03. Interest
Calculations.
All
calculations of interest hereunder that are made in respect of the Principal
Balance of a Mortgage Loan shall be made on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.01. Representations,
Warranties and Covenants Regarding the Servicer and the Master
Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Issuer and for the
benefit of the Indenture Trustee, as pledgee of the Mortgage Loans, the
Securities Administrator, the Master Servicer and the Noteholders that as of
the
Closing Date or as of such date specifically provided herein:
(i) The
Servicer is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its organization and has, and had at all relevant times,
full power to service the Mortgage Loans, to own its property, to carry on
its
business as presently conducted and to enter into and perform its obligations
under this Agreement;
(ii) The
execution and delivery of this Agreement by the Servicer and the performance
by
it of and compliance with the terms of this Agreement will not violate the
Servicer’s charter or by-laws or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in
the breach or acceleration of, any material contract, agreement or other
instrument to which the Servicer is a party or which may be applicable to the
Servicer or any of its assets;
(iii) The
Servicer has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement to be consummated by it, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
valid, legal and binding obligation of the Servicer, enforceable against it
in
accordance with the terms hereof, except as such enforcement may be limited
by
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally or the rights of
creditors of insured institutions, and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law);
(iv) The
Servicer is not in violation of, and the execution and delivery of this
Agreement by the Servicer and the performance by it and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise) or
operations of the Servicer or any of its properties or materially and adversely
affect the performance of any of its duties hereunder;
(v) There
are
no actions or proceedings against, or investigations of, the Servicer pending
or, to the knowledge of the Servicer, threatened, before any court,
administrative agency or other tribunal (A) that, if determined adversely,
would
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or (C)
that, if determined adversely, would prohibit or materially and adversely affect
the performance by the Servicer of any of its obligations under, or the validity
or enforceability of, this Agreement;
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement, or for the consummation
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders, if any, that have been obtained prior
to
the Closing Date;
(vii) No
Officer’s Certificate, statement, report or other document prepared by the
Servicer and furnished or to be furnished by it pursuant to this Agreement
or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact;
(viii) The
Servicer believes that the Servicing Fee Rate provides a reasonable level of
base compensation to the Servicer for servicing the Mortgage Loans on the terms
set forth herein;
(ix) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(x) The
collection practices used by the Servicer with respect to the Mortgage Loans
have been, in all material respects, legal, proper, prudent and customary in
the
non-conforming mortgage servicing business; and
(xi) The
Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
(b) The
Master Servicer hereby represents, warrants and covenants to the Issuer and
for
the benefit of the Indenture Trustee, as pledgee of the Mortgage Loans, the
Securities Administrator and the Noteholders that as of the Closing Date or
as
of such date specifically provided herein:
(i) The
Master Servicer is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and has,
and
had at all relevant times, full power to master service the Mortgage Loans,
to
own its property, to carry on its business as presently conducted and to enter
into and perform its obligations under this Agreement;
(ii) The
execution and delivery of this Agreement by the Master Servicer and the
performance by it of and compliance with the terms of this Agreement will not
violate the Master Servicer’s charter or by-laws or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the breach or acceleration of, any material contract,
agreement or other instrument to which the Master Servicer is a party or which
may be applicable to the Master Servicer or any of its assets;
(iii) The
Master Servicer has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement to be consummated by it, has
duly authorized the execution, delivery and performance of this Agreement,
and
has duly executed and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
valid, legal and binding obligation of the Master Servicer, enforceable against
it in accordance with the terms hereof, except as such enforcement may be
limited by insolvency, reorganization, receivership, moratorium or other similar
laws relating to or affecting the rights of creditors generally or the rights
of
creditors of insured institutions, and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law);
(iv) The
Master Servicer is not in violation of, and the execution and delivery of this
Agreement by the Master Servicer and the performance by it and compliance with
the terms of this Agreement will not constitute a violation with respect to,
any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise) or
operations of the Master Servicer or any of its properties or materially and
adversely affect the performance of any of its duties hereunder;
(v) There
are
no actions or proceedings against, or investigations of, the Master Servicer
pending or, to the knowledge of the Master Servicer, threatened, before any
court, administrative agency or other tribunal (A) that, if determined
adversely, would prohibit its entering into this Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or (C) that, if determined adversely, would prohibit or materially
and
adversely affect the performance by the Master Servicer of any of its
obligations under, or the validity or enforceability of, this
Agreement;
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement, or
for
the consummation of the transactions contemplated by this Agreement, except
for
such consents, approvals, authorizations and orders, if any, that have been
obtained prior to the Closing Date; and
(vii) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Master Servicer.
(c) The
representations and warranties set forth in this Section 2.01 shall survive
the
sale and assignment of the Mortgage Loans to the Trust. Upon discovery of a
breach of any representations and warranties which materially and adversely
affects the interests of the Noteholders, the Person discovering such breach
shall give prompt written notice to the other parties. Within sixty (60) days
of
its discovery or its receipt of notice of such breach, or, with the prior
written consent of a Responsible Officer of the Indenture Trustee or the
Securities Administrator, such longer period specified in such consent, the
Master Servicer or the Servicer, as the case may be, shall cure such breach
in
all material respects.
Section
2.02. Existence.
The
Issuer will keep in full effect its existence, rights and franchises as a
statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of
such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Servicing
Agreement.
Section
2.03. Enforcement
of Representations and Warranties.
Upon
discovery by the Seller, the Depositor, the Servicer, the Master Servicer or
a
Responsible Officer of the Indenture Trustee or the Securities Administrator
of
a breach of any of the representations and warranties made by the Originator
in
the Mortgage Loan Sale and Contribution Agreement (attached hereto as Exhibit
G), which materially and adversely affects the value of, or the interests of
the
Trust or the Noteholders in, the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the Originator. Within sixty
(60) days of its discovery or its receipt of notice of breach, the Indenture
Trustee shall enforce the obligation of the Originator to use all reasonable
efforts to cure such breach in all material respects or purchase such Mortgage
Loan from the Trust or substitute an Eligible Substitute Mortgage Loan as
provided in Section 3.2 of the Mortgage Loan Sale and Contribution Agreement
for
such Mortgage Loan. Any such purchase by the Originator shall be at the Purchase
Price, and in each case shall be accomplished in the manner set forth in Section
3.1 of the Mortgage Loan Sale and Contribution Agreement. It is understood
and
agreed that the obligation of the Originator to cure, substitute or purchase
any
Mortgage Loan as to which such a breach has occurred and is continuing shall
constitute the sole remedy against the Originator respecting such breach
available to the Servicer (in its role as such), the Master Servicer (in its
role as such), the Noteholders, the Securities Administrator or the Indenture
Trustee on behalf of Noteholders.
ARTICLE
III
ADMINISTRATION
ANDSERVICING OF MORTGAGE LOANS
Section
3.01. The
Servicer.
(a) The
Servicer, as independent contract servicer, shall service and administer the
Mortgage Loans consistent with the terms of this Agreement. The Servicer may
enter into Subservicing Agreements for any servicing and administration of
Mortgage Loans with any institution which (i) is in compliance with the laws
of
each state necessary to enable it to perform its obligations under such
Subservicing Agreement, (ii) meets the requirements of clause (2) of the
definition of an Approved Servicer or is an affiliate of the Servicer and (iii)
meets the requirements of Section 5.05 hereof. The Servicer shall give notice
to
the Master Servicer of the appointment of any Subservicer. Any such Subservicing
Agreement shall be consistent with and not violate the provisions of this
Agreement. The Servicer shall be entitled to terminate any Subservicing
Agreement in accordance with the terms and conditions of such Subservicing
Agreement and either itself directly service the related Mortgage Loans or
enter
into a Subservicing Agreement with a successor subservicer which qualifies
hereunder.
(b) Notwithstanding
any Subservicing Agreement or any of the provisions of this Agreement relating
to agreements or arrangements between the Servicer and a Subservicer or
reference to actions taken through a Subservicer or otherwise, the Servicer
shall remain obligated and primarily liable for the servicing and administering
of the Mortgage Loans in accordance with the provisions of this Agreement
without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from
the
Subservicer and to the same extent and under the same terms and conditions
as if
the Servicer alone were servicing and administering the Mortgage Loans. For
purposes of this Agreement, the Servicer shall be deemed to have received
payments on Mortgage Loans when the Subservicer has received such payments.
The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer, and nothing contained
in
this Agreement shall be deemed to limit or modify such
indemnification.
(c) Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
and not as an originator shall be deemed to be between the Subservicer and
the
Servicer alone, and the Indenture Trustee, the Master Servicer, the Securities
Administrator and Noteholders shall not be deemed parties thereto and shall
have
no claims, rights, obligations, duties or liabilities with respect to the
Subservicer except as set forth in Section 3.01(d). The Servicer shall be solely
liable for all fees owed by it to any Subservicer irrespective of whether the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
(d) In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of a Servicer Event of Default), the Successor Servicer or its designee
approved by the Master Servicer shall thereupon assume all of the rights and
obligations of the Servicer under each Subservicing Agreement that the Servicer
may have entered into, unless the Successor Servicer or designee approved by
the
Master Servicer elects to terminate any Subservicing Agreement. Any fee payable
in connection with such a termination will be payable by the outgoing Servicer.
If the Successor Servicer does not terminate the Subservicing Agreements, the
Successor Servicer, its designee or the successor servicer for the Successor
Servicer shall be deemed to have assumed all of the Servicer’s interest therein
and to have replaced the Servicer as a party to each Subservicing Agreement
to
the same extent as if the Subservicing Agreements had been assigned to the
assuming party, except that the Servicer shall not thereby be relieved of any
liability or obligations under the Subservicing Agreements with regard to events
that occurred prior to the date the Servicer ceased to be the Servicer
hereunder. The Servicer, at its expense and without right of reimbursement
therefor, shall, upon the request of the Successor Servicer, deliver to the
assuming party all documents and records relating to each Subservicing Agreement
and the Mortgage Loans then being serviced and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreements to the assuming
party.
(e) Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s good faith determination such waiver, modification, postponement or
indulgence is not materially adverse to the interests of the Noteholders,
provided,
however,
that
(unless the Mortgagor is in default with respect to the Mortgage Loan, or such
default is, in the judgment of the Servicer, imminent) the Servicer may not
permit any modification with respect to any Mortgage Loan that would change
the
Loan Rate, defer or forgive the payment of any principal or interest (unless
in
connection with the liquidation of the related Mortgage Loan) or extend the
final maturity date on the Mortgage Loan. No costs incurred by the Servicer
or
any Subservicer in respect of Servicing Advances shall, for the purposes of
payments to Noteholders, be added to the amount owing under the related Mortgage
Loan. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered to execute and deliver on
behalf of the Indenture Trustee and each Noteholder, all instruments of
satisfaction or cancellation, of partial or full release, or of discharge and
all other comparable instruments with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Servicer,
the
Indenture Trustee shall furnish the Servicer with any powers of attorney (in
a
form acceptable to the Indenture Trustee) and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
Notwithstanding
anything to the contrary contained herein, the Servicer, in servicing and
administering the Mortgage Loans, shall employ or cause to be employed
procedures (including collection, foreclosure and REO Property management
procedures) and exercise the same care that it customarily employs and exercises
in servicing and administering mortgage loans for its own account, in accordance
with accepted mortgage servicing practices of prudent lending institutions
servicing mortgage loans similar to the Mortgage Loans and giving due
consideration to the Noteholders’ reliance on the Servicer.
(f) Within
ninety (90) days after such time as each of the Indenture Trustee, the Master
Servicer and the Securities Administrator receives the resignation of, or notice
of the removal of, the Servicer from its rights and obligations under this
Agreement, and with respect to resignation pursuant to Section 5.04, after
receipt by the Indenture Trustee and the Securities Administrator of the Opinion
of Counsel required pursuant to Section 5.04, the Successor Servicer shall
assume all of the rights and obligations of the Servicer, subject to Section
6.02; provided
that if
the Servicer is removed pursuant to Section 6.02, the Successor Servicer shall
immediately be obligated to make Monthly Advances and Servicing Advances as
required in this Agreement. The Servicer shall, upon request of the Successor
Servicer but at the expense of the Servicer, deliver to the Successor Servicer
all documents and records relating to the Mortgage Loans and an accounting
of
amounts collected and held by the Servicer and otherwise use its best efforts
to
effect the orderly and efficient transfer of servicing rights and obligations
to
the assuming party who shall be entitled to reimbursement by the Servicer (or,
to the extent not paid by the Servicer, by the Trust prior to payments to
Noteholders) for Servicing Transfer Costs.
(g) The
Servicer shall deliver a list of Servicing Officers to the Indenture Trustee,
the Master Servicer and the Securities Administrator on or before the Closing
Date.
(h) Consistent
with the terms of this Agreement, the Servicer may consent to the placing of
a
lien senior to that of the Mortgage on the related Mortgaged Property;
provided
that
such senior lien secures a mortgage loan that refinances a First Lien and the
Combined Loan-to-Value Ratio of the related Mortgage Loan immediately following
the refinancing (based on the outstanding principal balance of the Mortgage
Loan
and the original principal balance of such refinanced mortgage loan) is not
greater than the Combined Loan-to-Value Ratio of such Mortgage Loan as of the
related Cut-Off Date.
(i) The
Servicer is authorized and empowered by the Indenture Trustee, on behalf of
the
Noteholders and the Indenture Trustee, in its own name or in the name of any
Subservicer, when the Servicer or any Subservicer, as the case may be, believes
it appropriate in its best judgment to register any Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Mortgage Loan on
the
MERS® System, to execute and deliver, on behalf of the Indenture Trustee and the
Noteholders or any of them, any and all instruments of assignment and other
comparable instruments with respect to such assignment or re-recording of a
Mortgage in the name of MERS, solely as nominee for the Indenture Trustee and
its successors and assigns.
(j) The
Servicer shall provide to the Master Servicer and the Depositor upon request,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omissions Insurance, financial information and reports, and such other
information related to the Servicer or any Subservicer or the Servicer’s or such
Subservicer’s performance hereunder.
Section
3.02. Collection
of Certain Mortgage Loan Payments.
(a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement, follow such collection
procedures as it follows with respect to mortgage loans in its servicing
portfolio comparable to the Mortgage Loans. Consistent with the foregoing,
and
without limiting the generality of the foregoing, the Servicer may in its
discretion (i) subject to the provisions of Section 3.21 hereof, waive any
prepayment charge, late payment charge or any assumption fees or other fees
which may be collected in the ordinary course of servicing such Mortgage Loan
and (ii) arrange with a Mortgagor a schedule for the payment of interest due
and
unpaid; provided
that
such arrangement is consistent with the Servicer’s policies with respect to the
mortgage loans it owns or services; provided,
further,
that
notwithstanding such arrangement such Mortgage Loans will be included in the
monthly information delivered by the Servicer to the Master Servicer pursuant
to
Section 3.23.
(b) The
Servicer shall establish and maintain a separate trust account (the “Collection
Account”) titled “HSBC Bank USA, National Association, as Indenture Trustee, in
trust for the registered holders of Renaissance Home Equity Loan Trust 2006-2
Asset-Backed Notes, Series 2006-2”. The Collection Account shall be an Eligible
Account. On the Closing Date, the Seller shall cause to be deposited in the
Collection Account any amounts representing payments on and any collections
in
respect of the Mortgage Loans received after the related Cut-Off Date (other
than principal and interest accrued and due on or prior to June 1, 2006) and
prior to the Closing Date. The Servicer shall deposit within two (2) Business
Days following receipt thereof the following payments and collections received
or made by it (without duplication):
(i) all
payments received after the related Cut-Off Date on account of principal on
the
Mortgage Loans (exclusive of payments in respect of principal on the Mortgage
Loans which were due on or prior to the related Cut-off Date) and all Principal
Prepayments and Curtailments collected after the related Cut-Off
Date;
(ii) all
payments received after the related Cut-Off Date on account of interest on
the
Mortgage Loans (exclusive of payments in respect of interest on the Mortgage
Loans which have accrued and were due on or prior to the related Cut-Off
Date);
(iii) all
Net
Liquidation Proceeds net of Foreclosure Profits;
(iv) all
Insurance Proceeds other than any portion thereof constituting Net Liquidation
Proceeds;
(v) all
Released Mortgaged Property Proceeds;
(vi) any
amounts payable in connection with the repurchase of any Mortgage Loan and
the
amount of any Substitution Adjustment pursuant to Sections 2.1(f), 3.1 or 3.2
of
the Mortgage Loan Sale and Contribution Agreement and Section 3.16
hereof;
(vii) any
amount required to be deposited in the Collection Account pursuant to Sections
3.02, 3.04, 3.05, 3.06, 3.07, 3.14, 3.15(d), 3.16 and 3.21;
(viii) any
Prepayment Charges; and
(ix) the
Purchase Price of any Mortgage Loan repurchased by the Originator pursuant
to
the Mortgage Loan Sale and Contribution Agreement and remitted by the Originator
to the Servicer;
provided,
however,
that,
with respect to each Due Period, the Servicer shall be permitted to retain
(x)
from payments in respect of interest on a Mortgage Loan, the Servicing Fee
and
any Ancillary Income for such Mortgage Loan and (y) from payments from
Mortgagors, Liquidation Proceeds, Insurance Proceeds and Released Mortgaged
Property Proceeds, any unreimbursed Servicing Advances and Monthly Advances
or
unpaid Servicing Fees related thereto. The foregoing requirements respecting
deposits to the Collection Account are exclusive, it being understood that,
without limiting the generality of the foregoing, the Servicer need not deposit
in the Collection Account amounts representing Servicing Compensation or amounts
received by the Servicer for the accounts of Mortgagors for application toward
the payment of taxes, insurance premiums, assessments and similar
items.
The
Servicer may cause the institution maintaining the Collection Account to invest
any funds in the Collection Account in Eligible Investments (including
obligations of the Servicer or any of its Affiliates, if such obligations
otherwise qualify as Eligible Investments) pursuant to Section 3.01 of the
Indenture. No such investment shall mature later than the Deposit Date. The
Servicer shall deposit in the Collection Account, the amount of any loss
incurred in respect of any Eligible Investment held therein which is in excess
of the income and gain thereon immediately upon realization of such loss,
without any right to reimbursement therefore from its own funds.
Section
3.03. Withdrawals
from the Collection Account.
The
Servicer shall withdraw or cause to be withdrawn funds from the Collection
Account for the following purposes:
(i) before
1:00 p.m. (New York City time) on the related Deposit Date to withdraw the
remaining Available Funds and Prepayment Charges, and, in each case, remit
such
funds to the Securities Administrator for deposit to the Payment
Account;
(ii) to
reimburse the Servicer for any accrued unpaid Servicing Compensation which
the
Servicer would not have been required to deposit in the Collection Account
and
for unreimbursed Monthly Advances and Servicing Advances. The Servicer’s right
to reimbursement for unpaid Servicing Fees and unreimbursed Servicing Advances
shall be limited to late collections on the related Mortgage Loan, including
Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds
and such other amounts as may be collected by the Servicer from the related
Mortgagor or otherwise relating to the Mortgage Loan in respect of which such
reimbursed amounts are owed. The Servicer’s right to reimbursement for
unreimbursed Monthly Advances shall be limited to late collections on any
Mortgage Loan and to Liquidation Proceeds, Released Mortgaged Property Proceeds,
Insurance Proceeds and any purchase or repurchase proceeds on related Mortgage
Loans;
(iii) to
withdraw any amount received from a Mortgagor that is recoverable and sought
to
be recovered as a voidable preference by a trustee in bankruptcy pursuant to
the
United States Bankruptcy Code in accordance with a final, nonappealable order
of
a court having competent jurisdiction;
(iv) to
withdraw any funds deposited in the Collection Account that were not required
to
be deposited therein (such as Servicing Compensation) or were deposited therein
in error and to pay such funds to the appropriate Person;
(v) to
withdraw funds necessary for the conservation and disposition of REO Property
pursuant to Section 3.06 to the extent not advanced by the
Servicer;
(vi) to
reimburse the Servicer for Nonrecoverable Advances and any unpaid Servicing
Fees
related to a Mortgage Loan secured by a second lien on the related Mortgaged
Property to the extent not recovered pursuant to clause (ii) above;
(vii) to
pay to
the Seller collections received in respect of accrued interest and principal
on
the Mortgage Loans due on or before the related Cut-Off Date;
(viii) to
pay to
the Servicer, the Master Servicer, the Securities Administrator or the Indenture
Trustee the portion of any Purchase Price in respect of clause (iv) of the
definition thereof or of any Substitution Adjustment in respect of clause (d)
of
the definition thereof to the extent paid in respect of amounts incurred by
or
imposed on the Servicer, the Master Servicer, the Securities Administrator
or
the Indenture Trustee, as the case may be;
(ix) to
reimburse the Servicer for expenses incurred by it in connection with the
Mortgage Loans or Notes and reimbursable pursuant to Section 5.03 hereof;
and
(x) to
clear
and terminate the Collection Account upon the termination of this Agreement
and
to pay any amounts remaining therein to the Certificateholders.
The
parties to this Agreement acknowledge that Servicing Advances shall be
reimbursable pursuant to this Section 3.03, and agree that no reimbursement
of a
Servicing Advance shall be rejected or disallowed by any party unless it has
been shown that such Servicing Advance was not made in accordance with the
terms
of this Agreement.
Section
3.04. Maintenance
of Hazard Insurance; Property Protection Expenses.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance naming the Servicer as loss payee thereunder providing extended
coverage in an amount which is at least equal to the least of (x) the maximum
insurable value of the improvements securing such Mortgage Loan from time to
time, (y) the combined principal balance owing on such Mortgage Loan and any
mortgage loan senior to such Mortgage Loan and (z) the minimum amount required
to compensate for damage or loss on a replacement cost basis. The Servicer
shall
also maintain on property acquired upon foreclosure or by deed in lieu of
foreclosure hazard insurance with extended coverage in an amount which is at
least equal to the least of (i) the maximum insurable value from time to time
of
the improvements which are a part of such property, (ii) the combined principal
balance owing on such Mortgage Loan and any mortgage loan senior to such
Mortgage Loan and (iii) the minimum amount required to compensate for damage
or
loss on a replacement cost basis at the time of such foreclosure, fire and/or
deed in lieu of foreclosure plus accrued interest and the good-faith estimate
of
the Servicer of related Servicing Advances to be incurred in connection
therewith. Amounts collected by the Servicer under any such policies shall
be
deposited in the Collection Account to the extent called for by Section 3.02.
In
cases in which any Mortgaged Property is located in a federally designated
flood
area, the hazard insurance to be maintained for the related Mortgage Loan shall
include flood insurance to the extent such flood insurance is available and
the
Servicer has determined such insurance to be necessary in accordance with
accepted mortgage loan servicing standards for mortgage loans similar to the
Mortgage Loans. All such flood insurance shall be in amounts equal to the least
of (A) the amount in clause (x) above, (B) the amount in clause (y) above and
(C) the maximum amount of insurance available under the National Flood Insurance
Act of 1968, as amended. The Servicer shall be under no obligation to require
that any Mortgagor maintain earthquake or other additional insurance and shall
be under no obligation itself to maintain any such additional insurance on
property acquired in respect of a Mortgage Loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. The costs and expenses incurred by the
Servicer in maintaining any such insurance shall constitute Servicing
Advances.
Section
3.05. Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy rating of A:VIII or better in Best’s Key Rating
Guide, then, to the extent such policy names the Servicer as loss payee and
provides coverage in an amount equal to the aggregate unpaid principal balance
on the Mortgage Loans without co-insurance, and otherwise complies with the
requirements of Section 3.04, the Servicer shall be deemed conclusively to
have
satisfied its obligations with respect to fire and hazard insurance coverage
under Section 3.04, it being understood and agreed that such blanket policy
may
contain a deductible clause, in which case the Servicer shall, in the event
that
there shall not have been maintained on the related Mortgaged Property a policy
complying with Section 3.04, and there shall have been a loss which would have
been covered by such policy, deposit in the Collection Account the difference,
if any, between the amount that would have been payable under a policy complying
with Section 3.04 and the amount paid under such blanket policy. Upon the
request of the Indenture Trustee or the Master Servicer, the Servicer shall
cause to be delivered to the such party, a certified true copy of such policy.
In connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Indenture Trustee, and the Noteholders, claims under any such policy in a timely
fashion in accordance with the terms of such policy.
Section
3.06. Management
and Realization Upon Defaulted Mortgage Loans.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Noteholders solely for the purpose of its prudent and prompt disposition and
sale; provided
that the
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it shall determine
(i) that such restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan after reimbursement to itself of such expenses
and (ii) that such expenses will be recoverable to it through Liquidation
Proceeds (respecting which it shall have priority for purposes of withdrawals
from the Certificate Account pursuant to Section 3.03 hereof). The Servicer
shall be responsible for all other costs and expenses incurred by it in any
such
proceedings; provided
that it
shall be entitled to reimbursement thereof from the proceeds of liquidation
of
the related Mortgaged Property, as contemplated in Section 3.03 hereof. The
Servicer shall, either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same) on such terms and conditions as the Servicer
deems to be in the best interest of the Noteholders.
The
Servicer shall cause to be deposited, no later than two (2) Business Days after
the receipt thereof, in the Collection Account, all revenues received with
respect to the related REO Property and shall retain, or request the Securities
Administrator to withdraw therefrom, funds necessary for the proper operation,
management and maintenance of the REO Property and the fees of any managing
agent acting on behalf of the Servicer.
The
disposition of REO Property shall be carried out by the Servicer for cash at
such price, and upon such terms and conditions, as the Servicer deems to be
in
the best interest of the Noteholders and, as soon as practicable thereafter,
the
expenses of such sale shall be paid out of the proceeds of such sale. The cash
proceeds of sale of the REO Property shall be promptly deposited in the
Collection Account, net of Foreclosure Profits and of any related unreimbursed
Servicing Advances, accrued and unpaid Servicing Fees and unreimbursed Monthly
Advances payable to the Servicer in accordance with Section 3.03, for payment
to
the Noteholders in accordance with Section 3.05 of the Indenture.
The
Servicer shall foreclose upon or otherwise comparably convert to ownership
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default when no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.02.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be issued to
the
Indenture Trustee or to its nominee on behalf of Noteholders.
In
the
event any Mortgaged Property is acquired as aforesaid or otherwise in connection
with a default or imminent default on a Mortgage Loan, the Servicer shall (i)
dispose of such Mortgaged Property within three (3) years after the close of
the
taxable year in which the Mortgaged Property was acquired (the “grace period”)
or (ii) prior to the expiration of any extension to such grace period which
is
requested on behalf of the Trust by the Servicer (at the expense of the Trust)
more than sixty (60) days prior to the end of the grace period and granted
by
the Internal Revenue Service, unless the Trust shall have received an Opinion
of
Counsel to the effect that the holding of such Mortgaged Property subsequent
to
expiration of the grace period would not cause such Mortgaged Property to fail
to constitute “foreclosure property” as defined in the Code.
If
the
Servicer has actual knowledge that a Mortgaged Property which the Servicer
is
contemplating acquiring in foreclosure or by deed in lieu of foreclosure is
located within a one-mile radius of any site with environmental or hazardous
waste risks known to the Servicer, the Servicer will notify the Master Servicer
prior to acquiring the Mortgaged Property. Nothing in this Section 3.06 shall
affect the Servicer’s right to deem certain advances proposed to be made
Nonrecoverable Advances. For the purpose of this Section 3.06, actual knowledge
of the Servicer means actual knowledge of a Responsible Officer of the Servicer
involved in the servicing of the relevant Mortgage Loan. Actual knowledge of
the
Servicer does not include knowledge imputable by virtue of the availability
of
or accessibility to information relating to environmental or hazardous waste
sites or the locations thereof.
Section
3.07. Indenture
Trustee to Cooperate.
Upon
any
Principal Prepayment, the Servicer is authorized to execute, pursuant to the
authorization contained in Section 3.01(e), if the related Assignment of
Mortgage has been recorded as required hereunder, an instrument of satisfaction
regarding the related Mortgage, which instrument of satisfaction shall be
recorded by the Servicer if required by applicable law and be delivered to
the
Person entitled thereto. The Servicer is also authorized to cause the removal
from the registration on the MERS System of such Mortgage and to execute and
deliver, on behalf of the Indenture Trustee and the Noteholders or any of them,
any and all instruments of satisfaction or cancellation or of partial or full
release. It is understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or transfer shall be reimbursed from
amounts deposited in the Collection Account. If the Indenture Trustee or
Custodian is holding the Mortgage Files, from time to time and as appropriate
for the servicing or foreclosure of any Mortgage Loan, the Indenture Trustee
or
Custodian shall, upon request of the Servicer or the Master Servicer and
delivery to the Custodian of two (2) copies of a Request for Release, one of
which will be returned to the Servicer or the Master Servicer with the Mortgage
File, in the form annexed hereto as Exhibit B, signed by a Servicing Officer
or
a Master Servicing Officer or in a mutually agreeable electronic format which
originates from a Servicing Officer or a Master Servicing Officer, release
the
related Mortgage File to the Servicer or the Master Servicer, and the Indenture
Trustee or Custodian shall execute such documents, in the forms provided by
the
Servicer or the Master Servicer, as shall be necessary for the prosecution
of
any such proceedings or the taking of other servicing or master servicing
actions. Such Request for Release shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Indenture Trustee or the Custodian,
as the case may be, when the need therefor by the Servicer or the Master
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in
which
case, upon receipt of a certificate of a Servicing Officer or Master Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Indenture Trustee or Custodian to the Servicer or the Master
Servicer.
In
addition to the foregoing, the Indenture Trustee or Custodian shall release
to
the Seller, any Mortgage File for which the Seller has repurchased or
substituted for the related Mortgage Loan pursuant to the Mortgage Loan Sale
and
Contribution Agreement and the Indenture Trustee or the Custodian shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Seller or its designee any
Mortgage Loan released pursuant hereto. If, pursuant to Section 2.1(f) of the
Mortgage Loan Sale and Contribution Agreement, the Seller repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Servicer shall, at the Seller’s expense,
either (i) cause MERS to execute and deliver an Assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Seller and shall
cause
such Mortgage to be removed from registration on the MERS® System in accordance
with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS®
System the Seller as the beneficial holder of such Mortgage Loan.
Section
3.08. Servicing
Compensation; Payment of Certain Expenses by Servicer.
Subject
to Section 3.14, the Servicer shall be entitled to retain the Servicing Fee
in
accordance with Section 3.02 as compensation for its services in connection
with
servicing the Mortgage Loans. Moreover, late payment charges or other receipts
not required to be deposited in the Collection Account, including, without
limitation, Foreclosure Profits, Ancillary Income and, subject to Section 3.01
of the Indenture, investment income on the Collection Account shall be
additional servicing compensation and retained by the Servicer. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided herein.
Section
3.09. Statement
as to Compliance.
The
Servicer, the Master Servicer and the Securities Administrator will deliver
or
otherwise make available (and the Servicer, Master Servicer and Securities
Administrator shall cause any Servicing Function Participant engaged by it
to
deliver) to the Depositor and the Securities Administrator, and in the case
of
the Master Servicer to the Trustee, not later than March 15th
of each
calendar year beginning in 2007, an Officers’ Certificate (an “Annual Statement
of Compliance”) stating, as to each signatory thereof, that (i) a review of the
activities of such party during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement or such other applicable
agreement in the case of a Servicing Function Participant has been made under
such officers’ supervision and (ii) to the best of such officers’ knowledge,
based on such review, such party has fulfilled all of its obligations under
this
Agreement or such other applicable agreement in the case of a Servicing Function
Participant in all material respects throughout such calendar year, or, if
there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
of
cure provisions thereof.
In
the
event the Master Servicer, the Securities Administrator, the Custodian or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a report on assessment of compliance pursuant to this Section
3.09, or pursuant to such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
Failure
of the Servicer to timely comply with this Section 3.09 shall be deemed a
Servicer Event of Default, and the Indenture Trustee or the Master Servicer,
as
applicable, may, in addition to whatever rights the Indenture Trustee or the
Master Servicer, as applicable, may have under this Agreement and at law or
in
equity, including injunctive relief and specific performance, upon notice
immediately terminate (as provided in Section 6.01(a)) all the rights and
obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof without compensating the Servicer for the same
(other than the Servicer’s right to reimbursement of unreimbursed Monthly
Advances and Servicing Advances and accrued and unpaid Servicing Fees in the
manner provided in this Agreement). This paragraph shall supersede any other
provision in this Agreement or any other agreement to the contrary.
| Section 3.10. |
Assessments of Compliance and Attestation Reports.
|
By
March
15th
of each
year, commencing in March 2007, the Servicer, the Master Servicer, the
Securities Administrator and the Custodian, each at its own expense, shall
furnish or otherwise make available, and each such party shall cause any
Servicing Function Participant engaged by it to furnish, each at its own
expense, to the Securities Administrator and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 3.13(a)(iv), including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion
of
each such failure and the nature and status thereof, and (D) a statement that
a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for such period. Notwithstanding the foregoing, neither the Servicer nor any
Servicing Function Participant engaged by the Servicer shall be required to
deliver any assessments until March 31st in any year following the year in
which
the Servicer receives notification that the Form 15 for the Trust has been
filed, however, notwithstanding anything herein to the contrary, no
Subcontractor will be required to deliver any assessments in any such given
year
in which the Form 10-K is not required to be filed.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Servicer,
the
Master Servicer, the Securities Administrator, the Custodian and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by any such
party, and (ii) the Securities Administrator shall confirm that the assessments,
taken as a whole, address all of the Servicing Criteria and taken individually
address the Relevant Servicing Criteria for each party as set forth on Exhibit
J
and notify the Depositor of any exceptions.
In
the
event the Servicer, the Master Servicer, the Securities Administrator, the
Custodian, or any Servicing Function Participant engaged by any such party
is
terminated, assigns its rights and obligations under, or resigns pursuant to,
the terms of this Agreement, or any other applicable agreement, as the case
may
be, such party shall provide a report on assessment of compliance pursuant
to
this Section 3.10, or to such other applicable agreement, notwithstanding any
such termination, assignment or resignation.
By
March
15th
of each
year, commencing in March 2007, the Servicer, the Master Servicer, the
Securities Administrator and the Custodian, each at its own expense, shall
cause, and each such party shall cause any Servicing Function Participant
engaged by it to cause, each at its own expense, a registered public accounting
firm (which may also render other services to the Servicer, the Master Servicer,
the Securities Administrator, the Custodian or such other Servicing Function
Participants, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish an attestation report to the
Securities Administrator and the Depositor, to the effect that (i) it has
obtained a representation regarding certain matters from the management of
such
party, which includes an assertion that such party has complied with the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued
or
adopted by the Public Company Accounting Oversight Board, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Notwithstanding
the foregoing, neither the Servicer nor any Servicing Function Participant
engaged by the Servicer shall be required to deliver or cause the delivery
of
such reports until March 31st in any year following the year in which the
Servicer receives notification that the Form 15 for the Trust has been filed,
however, notwithstanding anything herein to the contrary, no Subcontractor
will
be required to deliver any report in any such given year in which the Form
10-K
is not required to be filed.
Promptly
after receipt of each such assessment of compliance and attestation report,
the
Securities Administrator shall confirm that each assessment submitted pursuant
to this Section 3.10 is coupled with an attestation meeting the requirements
of
this Section 3.10 and notify the Depositor of any exceptions.
In
the
event the Servicer, the Master Servicer, the Securities Administrator, the
Custodian, or any Servicing Function Participant engaged by any such party,
is
terminated, assigns its rights and duties under, or resigns pursuant to the
terms of, this Agreement, or any applicable Custodial Agreement or sub-servicing
agreement, as the case may be, such party shall cause a registered public
accounting firm to provide an attestation pursuant to this Section 3.10, or
such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
Section
3.11. Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Servicer shall provide to the Seller, the Indenture Trustee, the Master
Servicer, the Custodian, Noteholders, and Note Owners which are federally
insured savings and loan associations, the Office of Thrift Supervision, the
FDIC and the supervisory agents and examiners of the Office of Thrift
Supervision access to the documentation in the Servicer’s possession regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision and the FDIC (acting as operator of the SAIF or the BIF), such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Servicer. Nothing in this Section
3.11 shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.11 as a result of such obligation shall not constitute a breach of this
Section 3.11. The Servicer shall not be required to make copies of or ship
documents to any party unless provisions have been made for the reimbursement
of
costs thereof; provided,
however,
that no
such reimbursement shall be required from either the Indenture Trustee, the
Master Servicer or the Custodian. In addition the Seller shall have the right
to
review the Servicer’s books and records and perform all necessary testing in
accordance with the PCAOB Release No. 2004-001, dated March 9, 2004, as it
pertains to the “Use of Service Organizations.”
Section
3.12. Maintenance
of Certain Servicing Insurance Policies.
The
Servicer shall during the term of its service as servicer maintain in force
(i)
a policy or policies of insurance covering errors and omissions in the
performance of its obligations as servicer hereunder and (ii) a fidelity bond
in
respect of its officers, employees or agents. Each such policy or policies
and
bond shall, together, comply with the requirements from time to time of Xxxxxx
Xxx for persons performing servicing for mortgage loans purchased by Xxxxxx
Mae.
Upon reasonable request of the Depositor, the Servicer shall provide to the
Depositor evidence of such insurance or fidelity bond.
Section
3.13. Exchange
Commission Filings; Additional Information.
(a) (i)
Within 15 days after each Payment Date (subject to permitted extensions under
the Exchange Act), the Securities Administrator shall, on behalf of the Trust
and in accordance with industry standards, prepare and file with the Commission
via the Electronic Data Gathering and Retrieval System (“XXXXX”), a distribution
report on Form 10-D, signed by the Master Servicer, with a copy of the monthly
statement to be furnished by the Securities Administrator to the Noteholders
for
such Payment Date attached thereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be reported by the parties set forth on Exhibit L to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-D Disclosure, except to the extent of its obligations
set
forth in the following paragraph.
(ii) As
set
forth on Exhibit L hereto, within 5 calendar days after the related Payment
Date, (i) the parties set forth in Exhibit L shall be required to provide,
pursuant to Section 3.13(a)(v) below, to the Securities Administrator and to
the
Depositor, to the extent known, in XXXXX-compatible format, or in such other
format as agreed upon by the Securities Administrator, the Depositor and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable, together with an Additional Disclosure Notification in the form
attached hereto as Exhibit L and (ii) the Depositor will approve, as to form
and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Securities Administrator has no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Exhibit L of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure information.
The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section.
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D, if the answer to either question should be “no.”
The
Securities Administrator shall be entitled to rely on such representations
in
preparing, executing and/or filing any such report.
After
preparing the Form 10-D, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-D to the Depositor, only to the
extent that the Form 10-D contains Additional Form 10-D Disclosure. Within
two
Business Days after receipt of such copy, but no later than the 12th
calendar
day after the Payment Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of such Form
10-D, the Securities Administrator shall be entitled to assume that such Form
10-D is in final form and the Securities Administrator may proceed with the
execution and filing of the Form 10-D. A duly authorized representative of
the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.13(a)(vi).
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a
final
executed copy of each Form 10-D filed by the Securities Administrator. Each
party to this Agreement acknowledges that the performance by the Master Servicer
and the Securities Administrator of its duties under Sections 3.13(a)(i), (ii)
and (v) related to the timely preparation, execution and filing of Form 10-D
is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under such Sections. The Depositor acknowledges
that
the performance by the Master Servicer and the Securities Administrator of
its
duties under this Section 3.13(a)(ii) related to the timely preparation,
execution and filing of Form 10-D is also contingent upon the Custodian and
any
Servicing Function Participant strictly observing deadlines no later than those
set forth in this paragraph that are applicable to the parties to this Agreement
in the delivery to the Securities Administrator of any necessary Additional
Form
10-D Disclosure pursuant to the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage or claim arising out of or
with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to obtain or receive, on a timely basis, any information from any
other party hereto or the Custodian or any Servicing Function Participant needed
to prepare, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, and to the extent it receives the Form 8-K Disclosure Information
described below, the Securities Administrator shall prepare and file on behalf
of the Trust a Form 8-K, as required by the Exchange Act, provided that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Notes. Any disclosure or information related to a Reportable Event or that
is
otherwise required to be included on Form 8-K other than the initial Form 8-K
(“Form 8-K Disclosure Information”) shall be reported by the parties set forth
on Exhibit K to the Depositor and the Securities Administrator and directed
and
approved by the Depositor pursuant to the following paragraph, and the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K except to the extent of its obligations as set forth in the following
paragraph.
As
set
forth in Exhibit M hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the close of business on the
2nd
Business
Day after the occurrence of a Reportable Event (i) the parties set forth in
Exhibit M shall be required pursuant to Section 3.13(a)(v) below to provide
to
the Securities Administrator and the Depositor, to the extent known, in
XXXXX-compatible format, or in such other format as agreed upon by the
Securities Administrator, the Depositor and such party, the form and substance
of any Form 8-K Disclosure Information, if applicable, together with an
Additional Disclosure Notification and (ii) the Depositor will approve, as
to
form and substance, or disapprove, as the case may be, the inclusion of the
Form
8-K Disclosure Information on Form 8-K. The Depositor will be responsible for
any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this Section.
After
preparing the Form 8-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 8-K to the Depositor. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval, or if the
Depositor does not request a copy of such Form 8-K, the Securities Administrator
shall be entitled to assume that such Form 8-K is in final form and the
Securities Administrator may proceed with the execution and filing of the Form
8-K. A duly authorized representative of the Master Servicer shall sign each
Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed Form
8-K needs to be amended, the Securities Administrator will follow the procedures
set forth in Section 3.13(a)(vi). Promptly (but no later than one Business
Day)
after filing with the Commission, the Securities Administrator will make
available on its internet website a final executed copy of each Form 8-K filed
by it. The parties to this Agreement acknowledge that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.13(a)(iii) related to the timely preparation, execution and filing
of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 3.13(a)(iii).
The Depositor acknowledges that the performance by the Master Servicer and
the
Securities Administrator of its duties under this Section 3.13(a)(iii) related
to the timely preparation, execution and filing of Form 10-D is also contingent
upon the Custodian and any Servicing Function Participant strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Securities Administrator
of
any necessary Form 8-K Disclosure Information pursuant to the Custodial
Agreement or any other applicable agreement. Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 8-K, where such failure results from the Securities
Administrator’s inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 8-K, not resulting from its own negligence, bad faith or
willful misconduct.
(iv) (A)
On or
prior to the 90th
day
after the end of each fiscal year of the Trust or such earlier date as may
be
required by the Exchange Act (the “10-K Filing Deadline”) (it being understood
that the fiscal year for the Trust ends on December 31st
of each
year), commencing in March 2007, the Master
Servicer
shall
prepare and file on behalf of the Trust a Form 10-K, in form and substance
as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Master
Servicer within the applicable time frames set forth in this Agreement and
the
Custodial Agreement, (i) an annual compliance statement for the Servicer, the
Master Servicer, the Securities Administrator and any Servicing Function
Participant engaged by such parties (together with the Custodian, each, a
“Reporting
Servicer”)
as
described under Section 3.09 of this Agreement and the Custodial Agreement,
provided, that the Securities Administrator, at its discretion, may omit from
the Form 10-K any annual compliance statement that is not required to be filed
with such Form 10-K pursuant to Regulation AB; (ii)(A) the annual reports on
assessment of compliance with Servicing Criteria for each Reporting Servicer,
as
described under Section 3.10 of this Agreement and the Custodial Agreement,
and
(B) if each Reporting Servicer’s report on assessment of compliance with
Servicing Criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if each Reporting Servicer’s
report on assessment of compliance with Servicing Criteria is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included and
an
explanation why such report is not included, provided, that the Securities
Administrator, at its discretion, may omit from the Form 10-K any assessment
of
compliance or attestation report described in clause (iii) below that is not
required to be filed with such Form 10-K pursuant to Regulation AB; (iii)(A)
the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.10 of this Agreement and the Custodial
Agreement, and (B) if any registered public accounting firm attestation report
described under Section 3.10 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to
such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification
(“Xxxxxxxx-Xxxxx Certification”) as described below. Any disclosure or
information in addition to (i) through (iv) above that is required to be
included on Form 10-K (“Additional Form 10-K Disclosure”) shall be reported by
the parties set forth on Exhibit N to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except to the extent of its obligations set forth in the
following paragraph.
As
set
forth on Exhibit N hereto, no later than March15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) the parties set forth in Exhibit N shall be required
to
provide pursuant to Section 3.13(a)(v) below to the Securities Administrator
and
to the Depositor, to the extent known, in XXXXX-compatible format, or in such
other format as agreed upon by the Securities Administrator, the Depositor
and
such party, the form and substance of any Additional Form 10-K Disclosure,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Securities Administrator has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Exhibit N of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this Section.
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Securities
Administrator
that the Depositor has filed all such required reports during the preceding
12
months and that it has been subject to such filing requirement for the past
90
days. The Depositor shall notify the Securities
Administrator
in writing, no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to either question
should be “no.” The Securities
Administrator
shall be entitled to rely on such representations in preparing, executing and/or
filing any such report.
After
preparing the Form 10-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
Business Days after receipt of such copy, but no later than March 25th, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-K, the Securities Administrator shall
be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the process for execution and filing of the
Form
10-K. A senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time or
if
a previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 3.13(a)(vi). Promptly (but
no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed
copy
of each Form 10-K filed by the Securities Administrator. The parties to this
Agreement acknowledge that the performance by each of the Master Servicer and
the Securities Administrator of its duties under Section 3.13(a)(iv) and Section
3.13(a) (v) related to the timely preparation, execution and filing of Form
10-K
is contingent upon such parties strictly observing all applicable deadlines
in
the performance of their duties under such Sections, Section 3.09 and Section
3.10. The Depositor acknowledges that the performance by each of the Master
Servicer and the Securities Administrator of its duties under this Section
3.13(a)(iv) related to the timely preparation, execution and filing of Form
10-K
is also contingent upon the Custodian and any Servicing Function Participant
strictly observing deadlines no later than those set forth in this paragraph
that are applicable to the parties to this Agreement in the delivery to the
Securities Administrator of any necessary Additional Form 10-K Disclosure,
any
annual statement of compliance and any assessment of compliance and attestation
pursuant to any applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto or the Custodian
or
any Servicing Function Participant needed to prepare, arrange for execution
or
file such Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Each
Form
10-K shall include the Xxxxxxxx-Xxxxx Certification required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Servicer, the Master
Servicer, and the Securities Administrator shall provide, and each such party
shall cause any Servicing Function Participant engaged by it to provide, to
the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act and otherwise within a reasonable period of time upon request, a
certification (a “Back-Up Certification”), in the form attached hereto as
Exhibit C-3, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. A senior officer of the Master Servicer shall serve as
the
Certifying Person on behalf of the Trust. In the event any such party or any
Servicing Function Participant engaged by such party is terminated or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall provide a Back-Up Certification to the
Certifying Person pursuant to this Section 3.13(a)(iv) with respect to the
period of time it was subject to this Agreement or any other applicable
agreement, as the case may be. Notwithstanding the foregoing, (i) the Master
Servicer and the Securities Administrator shall not be required to deliver
a
Back-Up Certification to each other if both are the same Person and the Master
Servicer is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it does
not
receive any Back-Up Certification required to be furnished to it pursuant to
this section or any Servicing Agreement or Custodial Agreement.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust, the Securities Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report is
subject to receipt from the entity that is indicated in Exhibit K as the
responsible party for providing that information, if other than the Securities
Administrator, as and when required as described in Section 3.13(a)(ii) through
(iv) above. Each of the Master Servicer, the Servicer and Depositor hereby
agree
to notify and to provide, to the extent known, to the Securities Administrator
and the Depositor, all Additional Disclosure relating to the Trust Fund, with
respect to which such party is the responsible party for providing that
information, as indicated in Exhibit K hereof. The Servicer shall be responsible
for determining the pool concentration applicable to any Sub-Servicer or
originator at any time, for purposes of disclosure as required by Items 1108
and
1110 of Regulation AB.
(vi) On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust under the Exchange Act. Upon filing the
Form 15 Suspension Notification, the Securities Administrator will provide
confirmation of such filing to the Servicer and the Depositor.
In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, Form 10-D or Form 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or was delivered to it after the delivery
deadlines set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor (followed by
telephonic notice). In the case of Form 10-D and Form 10-K, the parties to
this
Agreement will cooperate to prepare and file a Form 12b-25 and a Form 10-D/A
and
Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In
the
case of Form 8-K, the Securities Administrator will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended in connection with any Additional Form 10-D Disclosure (other than,
in
the case of Form 10-D, for the purpose of restating any monthly statement),
Additional Form 10-K Disclosure or Form 8-K Disclosure Information, the
Securities Administrator will notify electronically the Depositor and such
other
parties to the transaction as are affected by such amendment and such parties
will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A;
provided, the Securities Administrator will only be required to notify the
Depositor of any amendment to any Form 10-D where such amendment contains
Additional Form 10-D Disclosure. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, Form 10-D or Form 10-K shall be signed by a duly authorized
representative or senior officer in charge of master servicing, as applicable,
of the Master Servicer. The parties to this Agreement acknowledge that the
performance by each of the Master Servicer and the Securities Administrator
of
its duties under this Section 3.13(a)(vi) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
Form 10-D or Form 10-K is contingent upon each such party performing its duties
under this Section. Neither the Master Servicer nor the Securities Administrator
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
any
such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form
10-K,
where such failure results from the Securities Administrator’s inability or
failure to obtain or receive, on a timely basis, any information from any other
party hereto or any Custodian or any Servicing Function Participant needed
to
prepare, arrange for execution or file such Form 15, Form 12b-25 or any
amendments to Form 8-K, Form 10-D or Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Securities Administrator, from
time
to time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Securities Administrator reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Securities Administrator shall have
no responsibility to file any items other than those specified in this Section
3.13; provided, however, the Securities Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Securities Administrator in connection with this Section 3.13
shall not be reimbursable from the Trust Fund.
(vii) In
addition to such information as the Servicer is obligated to provide pursuant
to
other provisions of this Agreement, not later than ten days prior to the
deadline for the filing of any distribution report on Form 10-D, the Servicer
or
any Subservicer, as applicable, shall, to the extent the Servicer or such
Subservicer has knowledge, provide to the Securities Administrator notice of
the
occurrence of any of the following events along with all information, data,
and
materials related thereto as may be required to be included in the related
distribution report on Form 10-D (as specified in the provisions of Regulation
AB referenced below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) any
material pool asset changes (such as, additions, substitutions or repurchases)
(Item 1121(a)(14) of Regulation AB).
(b)
(A)
The
Securities Administrator shall indemnify and hold harmless the Depositor and
its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the Securities Administrator’s obligations under Section 3.09, Section
3.10 or this Section 3.13 or the Securities Administrator’s negligence, bad
faith or willful misconduct in connection therewith or (ii) any material
misstatement or omission in the Annual Statement of Compliance and the
Assessment of Compliance delivered by the Securities Administrator pursuant
to
Section 3.09 and Section 3.10.
(B) The
Depositor shall indemnify and hold harmless the Securities Administrator and
the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor under
this Section 3.13 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
(C) The
Master Servicer shall indemnify and hold harmless the Depositor and their
respective officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the obligations of the Master Servicer under Section 3.09,
Section 3.10 or this Section 3.13 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.09 or the Assessment of Compliance delivered by the Master
Servicer pursuant to Section 3.10.
(D) The
Servicer shall indemnify and hold harmless the Master Servicer, Securities
Administrator and the Depositor and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) a breach of the obligations of
the
Servicer under Section 3.09, Section 3.10 or this Section 3.13 and (ii)
any
material misstatement or omission in the Annual Statement of Compliance
delivered by the Servicer pursuant to Section 3.09 or the Assessment of
Compliance or the Attestation Report delivered by the Servicer pursuant to
Section 3.10.
(E) If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Master Servicer or the Securities Administrator,
as
applicable, then the defaulting party, in connection with a breach of its
respective obligations under this Section 3.13 or its respective negligence,
bad
faith or willful misconduct in connection therewith, agrees that it shall
contribute to the amount paid or payable by the other parties as a result of
the
losses, claims, damages or liabilities of the other party in such proportion
as
is appropriate to reflect the relative fault and the relative benefit of the
respective parties.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require the
Securities Administrator or any officer, director or Affiliate thereof to sign
any Form 10-K or any certification contained therein. Furthermore, the inability
of the Securities Administrator to file a Form 10-K as a result of the lack
of
required information as set forth in Section 3.13(a) or required signatures
on
such Form 10-K or any certification contained therein shall not be regarded
as a
breach by the Securities Administrator of any obligation under this
Agreement.
(d) Notwithstanding
the provisions of Section 7.01, this Section 3.13 may be amended without the
consent of the Noteholders.
Section
3.14. Compensating
Interest.
Not
later
than the Determination Date, the Servicer shall deposit to the Collection
Account an amount equal to the lesser of (A) the aggregate of the Prepayment
Interest Shortfalls for the related Payment Date resulting from Principal
Prepayments in full during the related Prepayment Period and (B) an amount
equal
to the product of (i) 1/12, (ii) the Servicing Fee Rate and (iii) the Pool
Balance as of the first day of the related Due Period. The Servicer shall not
have the right to reimbursement for any amounts deposited to the Collection
Account pursuant to this Section 3.14.
Section
3.15. Advances
by the Servicer.
(a) Not
later
than 1:00 p.m. New York time on the Deposit Date related to each Payment Date,
the Servicer shall remit to the Securities Administrator for deposit in the
Payment Account an amount to be paid on the related Payment Date pursuant to
Section 3.05 of the Indenture, equal to the Monthly Payment due on each Mortgage
Loan during the related Due Period, but not received as of the related
Determination Date (net of the Servicing Fee) such amount being defined herein
as the “Monthly Advance.” With respect to any Balloon Loan that is delinquent on
its maturity date, the Servicer will continue to make Monthly Advances with
respect to such Balloon Loan in an amount equal to one month’s interest on the
unpaid principal balance at the applicable Loan Rate (net of the Servicing
Fee)
according to the original amortization schedule for such Mortgage Loan. The
obligation to make Monthly Advances with respect to each Mortgage Loan shall
continue until such Mortgage Loan becomes a Liquidated Mortgage
Loan.
(b) Notwithstanding
anything herein to the contrary, (i) no Servicing Advance or Monthly Advance
shall be required to be made hereunder if the Servicer determines that such
Servicing Advance or Monthly Advance would, if made, constitute a Nonrecoverable
Advance and (ii) no Monthly Advance or Servicing Advance shall be required
with
respect to Civil Relief Act Interest Shortfalls.
(c) All
Monthly Advances and Servicing Advances, including any Nonrecoverable Advances
shall be reimbursed on a “first in, first out” (“FIFO”) basis.
(d) So
long
as the Servicer is Ocwen Loan Servicing, LLC or otherwise has long-term debt
rated at least investment grade by one of the Rating Agencies, Monthly Advances
may be made by the Servicer either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records
of
the Collection Account that amounts held for future distribution have been,
as
permitted by this Section 3.15, used by the Servicer in discharge of any such
Monthly Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of Monthly Advances to be made by the Servicer
with
respect to the Mortgage Loans and REO Properties. Any amounts held for future
distribution and so used shall be appropriately reflected in the Servicer’s
records and replaced by the Servicer by deposit in the Collection Account on
or
before the next Deposit Date.
Section
3.16. Optional
Purchase of Defaulted Mortgage Loans.
The
Servicer, in its sole discretion, shall have the right to elect (by written
notice sent to the Master Servicer) to purchase for its own account from the
Trust any Mortgage Loan which is ninety (90) days or more delinquent in the
manner and at the price specified in the Mortgage Loan Purchase Agreement.
The
Purchase Price for any Mortgage Loan purchased hereunder shall be deposited
in
the Collection Account and the Indenture Trustee, upon receipt of written notice
of such deposit in the Payment Account by the Securities Administrator, shall
release or cause to be released to the purchaser of such Mortgage Loan the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment prepared by the purchaser of such Mortgage Loan, in each case
without recourse, as shall be necessary to vest in the purchaser of such
Mortgage Loan any Mortgage Loan released pursuant hereto and the purchaser
of
such Mortgage Loan shall succeed to all the Indenture Trustee’s right, title and
interest in and to such Mortgage Loan and all security and documents related
thereto. Such assignment shall be an assignment outright and not for security.
The purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan,
and
all security and documents, free of any further obligation to the Indenture
Trustee or the Noteholders with respect thereto.
Section
3.17. Superior
Liens.
The
Servicer shall file (or cause to be filed) a request for notice of any action
by
a superior lienholder under a First Lien for the protection of the Indenture
Trustee’s interest, where permitted by local law and whenever applicable state
law does not require that a junior lienholder be named as a party defendant
in
foreclosure proceedings in order to foreclose such junior lienholder’s equity of
redemption.
If
the
Servicer is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the First Lien, or has declared or intends
to declare a default under the mortgage or the promissory note secured thereby,
or has filed or intends to file an election to have the Mortgaged Property
sold
or foreclosed, the Servicer shall take, on behalf of the Trust, whatever actions
are necessary to protect the interests of the Noteholders and/or to preserve
the
security of the related Mortgage Loan. The Servicer shall promptly notify the
Indenture Trustee of any such action or circumstances. The Servicer shall
advance the necessary funds to cure the default or reinstate the superior lien,
if such advance is in the best interests of the Noteholders in accordance with
the servicing standards in Section 3.01. The Servicer shall not make such an
advance except to the extent that it determines in its reasonable good faith
judgment that the advance would be recoverable from Liquidation Proceeds on
the
related Mortgage Loan and in no event in an amount that is greater than the
Principal Balance of the related Mortgage Loan. The Servicer shall thereafter
take such action as is necessary to recover the amount so advanced.
Section
3.18. Assumption
Agreements.
When
a
Mortgaged Property has been or is about to be conveyed by the Mortgagor, the
Servicer shall, to the extent it has knowledge of such conveyance or prospective
conveyance, exercise its right to accelerate the maturity of the related
Mortgage Loan under any “due-on-sale” clause contained in the related Mortgage
or Mortgage Note; provided,
however,
that
the Servicer shall not exercise any such right if the “due-on-sale” clause, in
the reasonable belief of the Servicer, is not enforceable under applicable
law.
In such event, the Servicer shall enter into an assumption and modification
agreement with the person to whom such property has been or is about to be
conveyed, pursuant to which such person shall become liable under the Mortgage
Note and, unless prohibited by applicable law, the Mortgagor shall remain liable
thereon. The Servicer, in accordance with accepted mortgage loan servicing
standards for mortgage loans similar to the Mortgage Loans, is also authorized
to enter into a substitution of liability whereby such person is substituted
as
mortgagor and becomes liable under the Mortgage Note. The Servicer shall notify
the Indenture Trustee and the Master Servicer that any such substitution or
assumption agreement has been completed by forwarding to the Indenture Trustee
and the Master Servicer the original of such substitution or assumption
agreement which original shall be added by the Indenture Trustee or its
Custodian to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. In connection with any
assumption or substitution agreement entered into pursuant to this Section
3.18,
the Servicer shall not change the Loan Rate or the Monthly Payment, defer or
forgive the payment of principal or interest, reduce the outstanding principal
amount or extend the final maturity date on such Mortgage Loan.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any assumption which the Servicer may be restricted by
law
from preventing, for any reason whatsoever.
Section
3.19. Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting fire and hazard insurance coverage.
With
respect to each Mortgage Loan as to which the Servicer maintains escrow
accounts, the Servicer shall maintain accurate records reflecting the status
of
ground rents, taxes, assessments, water rates and other charges which are or
may
become a lien upon the Mortgaged Property and the status of primary mortgage
guaranty insurance premiums, if any, and fire and hazard insurance coverage
and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in any escrow account which shall have been estimated and accumulated
by the Servicer in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage. To the extent that a Mortgage does not provide for escrow
payments, the Servicer shall, if it has received notice of a default or
deficiency, monitor such payments to determine if they are made by the
Mortgagor. The Servicer shall maintain a third-party (which may be an Affiliate
of the Servicer) tax monitoring service.
Section
3.20. Advance
Facility.
(a) The
Servicer is hereby authorized to enter in to a financing or other facility
(any
such arrangement, an “Advance Facility”) under which (1) the Servicer assigns or
pledges to another Person (an “Advancing Person”) the Servicer’s rights under
this Agreement to be reimbursed for any Monthly Advances or Servicing Advances
and/or (2) an Advancing Person agrees to fund some or all Monthly Advances
and/or Servicing Advances required to be made by the Servicer pursuant to this
Agreement. No consent of the Indenture Trustee, the Master Servicer, the
Securities Administrator, Noteholders or any other party is required before
the
Servicer may enter into an Advance Facility; provided,
however, that
the
consent of the Indenture Trustee, the Master Servicer and the Securities
Administrator shall be required before the Servicer may cause to be outstanding
at one time more than one Advance Facility with respect to Monthly Advances
or
more than one Advance Facility with respect to Servicing Advances.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund Monthly Advances and/or Servicing Advances on the
Servicer’s behalf, the Servicer shall remain obligated pursuant to this
Agreement to make Monthly Advances and Servicing Advances pursuant to and as
required by this Agreement. If the Servicer enters into an Advance Facility,
and
for so long as an Advancing Person remains entitled to receive reimbursement
for
any Monthly Advances including Nonrecoverable Advances related thereto (“Monthly
Advance Reimbursement Amounts”) and/or Servicing Advances including
Nonrecoverable Advances related thereto (“Servicing Advance Reimbursement
Amounts” and together with Monthly Advance Reimbursement Amounts, “Servicer
Reimbursement Amounts”) in each case to the extent that such type of Servicer
Reimbursement Amount is included in the Advance Facility, then the Servicer
shall identify such Servicer Reimbursement Amounts as received, consistently
with the reimbursement rights set forth in this Agreement, and shall remit
such
Servicer Reimbursement Amounts in accordance with the documentation establishing
the Advance Facility to such Advancing Person or to a trustee, agent or
custodian (each, an “Advance Facility Trustee”) designated by such Advancing
Person. Notwithstanding the foregoing, if so required pursuant to the terms
of
the Advance Facility, the Servicer may direct the Securities Administrator
to,
and if so directed the Securities Administrator is hereby authorized to and
shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer
Reimbursement Amounts identified pursuant to the preceding sentence.
Notwithstanding anything to the contrary herein, in no event shall Monthly
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in “Available Funds” or paid to Noteholders. If the Servicer makes a
remittance to the Securities Administrator of Servicer Reimbursement Amounts
under Section 3.03(i) as described above, the Servicer shall report to the
Master Servicer and the Securities Administrator the portions of such remittance
that consist of Available Funds, Monthly Advance Reimbursement Amounts and
Servicing Advance Reimbursement Amounts, respectively.
(b) If
the
Servicer enters into an Advance Facility and elects to remit Servicer
Reimbursement Amounts to the Securities Administrator, the Servicer and the
related Advancing Person shall deliver to the Securities Administrator a written
notice and payment instruction (an “Advance Facility Notice”), providing the
Securities Administrator with written payment instructions as to where to remit
Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement
Amounts (each to the extent such type of Servicer Reimbursement Amount is
included within the Advance Facility) on subsequent Payment Dates. The payment
instruction shall require the applicable Servicer Reimbursement Amounts to
be
distributed to the Advancing Person or to an Advance Facility Trustee designated
in the Advance Facility Notice. An Advance Facility Notice may only be
terminated by the joint written direction of the Servicer and the related
Advancing Person (and any related Advance Facility Trustee); provided,
however,
that
the provisions of this Section 3.20 shall cease to be applicable when all
Monthly Advances and Servicing Advances funded by an Advancing Person, and
when
all Monthly Advances and Servicing Advances the rights to be reimbursed for
which have been assigned or pledged to an Advancing Person, have been repaid
to
the related Advancing Person in full.
(c) Servicer
Reimbursement Amounts shall consist solely of amounts in respect of Monthly
Advances and/or Servicing Advances made with respect to the Mortgage Loans
for
which the Servicer would be permitted to reimburse itself in accordance with
Section 3.03(ii) or Section 3.03(vi) hereof, assuming the Servicer had made
the
related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the
foregoing, no Person shall be entitled to reimbursement from funds held in
the
Collection Account for future distribution to Noteholders pursuant to the
provisions of Section 3.15. None of the Securities Administrator, the Master
Servicer or the Indenture Trustee shall have any duty or liability with respect
to the calculation of any Servicer Reimbursement Amount and, if the Servicer
has
elected to remit Servicer Reimbursement Amounts to the Securities Administrator,
each of the Securities Administrator, the Master Servicer and the Indenture
Trustee shall be entitled to rely without independent investigation on the
Advance Facility Notice and on the Servicer’s report of the amount of Monthly
Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that
were included in the remittance from the Servicer to the Securities
Administrator pursuant to Section 3.03(i). The Servicer shall maintain and
provide to any Successor Servicer and (upon request) the Master Servicer a
detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged
or assigned to, and reimbursed to any Advancing Person. The Successor Servicer
shall be entitled to rely on any such information provided by the predecessor
Servicer, and the Successor Servicer shall not be liable for any errors in
such
information. None of the Depositor, the Indenture Trustee, the Master Servicer
or the Securities Administrator shall, as a result of the existence of any
Advance Facility, have any additional duty or liability with respect to the
calculation or payment of any Servicer Reimbursement Amount, and none of the
Depositor, the Indenture Trustee, the Master Servicer or the Securities
Administrator shall, as a result of the existence of any Advance Facility,
have
any additional responsibility to track or monitor the administration of such
Advance Facility or the payment of Servicer Reimbursement Amounts to an
Advancing Person.
(d) An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Monthly Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of Monthly Advances and/or
Servicing Advances shall not be required to meet the criteria for qualification
of a Sub-Servicer set forth in Section 3.01 hereof.
(e) Servicer
Reimbursement Amounts distributed with respect to each Mortgage Loan shall
be
allocated to outstanding unreimbursed Monthly Advances or Servicing Advances
(as
the case may be) made with respect to that Mortgage Loan on a FIFO basis. The
Servicer shall provide to the related Advancing Person or Advance Facility
Trustee loan-by-loan information with respect to each Servicer Reimbursement
Amount distributed by the Securities Administrator to such Advancing Person
or
Advance Facility Trustee on each Payment Date, to enable the Advancing Person
or
Advance Facility Trustee to make the FIFO allocation of each Servicer
Reimbursement Amount with respect to each Mortgage Loan. The Servicer shall
remain entitled to be reimbursed by the Advancing Person or Advance Facility
Trustee for all Monthly Advances and Servicing Advances funded by the Servicer
to the extent the related rights to be reimbursed therefor have not been
assigned or pledged to an Advancing Person.
(f) Notwithstanding
anything to the contrary in this Agreement, none of the Master Servicer, the
Securities Administrator or the Indenture Trustee shall be responsible for
tracking or monitoring Servicer Reimbursement Amounts or any Advance Facility,
and none of such parties shall be obligated to make any payment with respect
to
any Servicer Reimbursement Amount. The Servicer who enters into an Advance
Facility shall indemnify the Indenture Trustee, the Trust, the Master Servicer,
the Securities Administrator and any Successor Servicer for any loss, liability
or damage resulting from any claim by the related Advancing Person, except
(i)
in the case of the Indenture Trustee, the Securities Administrator, the Master
Servicer or the Trust, (A) resulting from any such claim which arises by reason
of such party’s, as applicable, willful misfeasance, bad faith or negligence in
the performance of its duties hereunder or by reason of the such party’s
reckless disregard of its obligations and duties hereunder or (B) any such
claim
for which such party receives indemnification from the Servicer or a Successor
Servicer pursuant to Section 5.06(a), or (ii) in the case of a Successor
Servicer, which claim arises by reason of such Successor Servicer’s willful
misfeasance, bad faith or negligence in the performance of its duties hereunder
or by reason of its reckless disregard of its obligations and duties hereunder.
Notwithstanding the foregoing, the exclusions set forth in clauses (i) and
(ii)
above from the Servicer’s obligation to indemnify the Indenture Trustee, the
Trust, the Master Servicer, the Securities Administrator and any Successor
Servicer shall not be applicable, in any case, to the extent the applicable
claim, loss, liability or damage was incurred by reason of the Servicer’s
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder, or by reason of a breach of the Servicer’s obligations and duties
under this Agreement.
(g) Notwithstanding
anything to the contrary in this Section 3.20, the Servicer shall consult with
the Master Servicer in determining the manner in which any Advance Facility
shall affect a Successor Servicer before the Servicer shall enter into an
Advance Facility. Any amendment to this Section 3.20 or to any other provision
of this Agreement that may be necessary or appropriate to effect the terms
of an
Advance Facility as described generally in this Section 3.20, including
amendments to add provisions relating to a Successor Servicer, may be entered
into by the parties hereto without the consent of any Noteholder,
notwithstanding anything to the contrary in this Agreement, and provided that
such Amendment otherwise complies with the terms hereof. All reasonable costs
and expenses (including attorneys’ fees) of each party hereto of any such
amendment shall be borne solely by the Servicer. The parties hereto hereby
acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances
financed by and/or pledged to an Advancing Person under any Advance Facility
are
obligations owed to the Servicer payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Monthly Advances and/or
Servicing Advances only to the extent provided herein, and the Indenture Trustee
and the Trust are not, as a result of the existence of any Advance Facility,
obligated or liable to repay any Monthly Advances and/or Servicing Advances
financed by the Advancing Person; (ii) the Servicer will be responsible for
remitting to the Advancing Person the applicable amounts collected by it as
reimbursement for Monthly Advances and/or Servicing Advances funded by the
Advancing Person, subject to the provisions of this Agreement and (iii) the
Indenture Trustee, the Master Servicer and the Securities Administrator shall
not have any responsibility to track or monitor the administration of the
financing arrangement between the Servicer and any Advancing
Person.
Section
3.21. Covenants
of the Servicer Regarding Prepayment Charges.
(a) The
Servicer will not waive any Prepayment Charge or part of a Prepayment Charge
unless (i) such waiver would maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and related Mortgage Loan and doing
so is standard and customary in servicing similar Mortgage Loans (including
any
waiver of a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is related to a default or a reasonably foreseeable default) and
in no
event will it waive a Prepayment Charge in connection with a refinancing of
a
Mortgage Loan that is not related to a default or a reasonably foreseeable
default, or (ii) the collection of the Prepayment Charge would be in violation
of applicable laws or regulations.
(b) Upon
discovery by the Servicer, the Master Servicer or a Responsible Officer of
the
Indenture Trustee or the Securities Administrator of a breach of the foregoing,
which materially and adversely affects the Holders of any NIMs Notes, the party
discovering such breach shall give prompt written notice to the other parties.
Within 60 days of the earlier of discovery by the Servicer or the Master
Servicer, or receipt of notice by the Servicer or the Master Servicer, as
applicable, of such breach, the Servicer shall cure such breach in all material
respects. If the covenant made by the Servicer is breached the Servicer must
pay
into the Collection Account the amount of the waived Prepayment Charge (less
any
amount previously collected and paid by the Servicer into the Collection
Account; provided,
however,
that
the Servicer shall not have an obligation to pay the amount of any uncollected
Prepayment Charge if the failure to collect such amount is the direct result
of
inaccurate or incomplete information on the Prepayment Charge Schedule in effect
at such time).
Section
3.22. Non-Solicitation.
Neither
the Master Servicer nor the Servicer shall take any action or permit or cause
any action to be taken by any of the Master Servicer’s or the Servicer’s agents
or affiliates, or by any independent contractors on the Master Servicer’s or the
Servicer’s behalf, to personally, by telephone, mail, e-mail or other similar
methods of communication, solicit any Mortgagor or obligor under any of the
Mortgage Loans to refinance a Mortgage Loan, in whole or in part, without the
prior written consent of the Seller, or any of its successors or assigns. It
is
understood and agreed that promotions undertaken by the Master Servicer or
the
Servicer which are directed to the general public at large, or designated
segments thereof, including without limitation mass mailings based on
commercially acquired mailing lists, newspaper, radio, telephone and television
advertisements shall not constitute solicitation under this Section
3.22.
Section
3.23. Reports
to Securities Administrator.
Not
later
than 1:00 p.m., New York time, on the 18th
calendar
day of each month, or if such 18th
day is
not a Business Day, the immediately preceding Business Day, the Servicer shall
deliver to the Master Servicer (who shall deliver to the Securities
Administrator) by electronic means reasonably acceptable to the Master Servicer,
a computer file containing the loan level information set forth in Exhibits
D, E
and F hereto necessary to permit the Master Servicer to perform its obligations
hereunder and the Securities Administrator to calculate the information required
by clauses (i) through (xxv) of Section 7.05 of the Indenture as of the end
of
the preceding Prepayment Period or Due Period, as applicable, and such other
information as the Master Servicer or the Securities Administrator shall
reasonably require.
Section
3.24. Reports
of Foreclosures and Abandonments of Mortgaged Properties, Returns Relating
to
Mortgage Interest Received from Individuals and Returns Relating to Cancellation
of Indebtedness.
The
Servicer shall make reports of foreclosures and abandonments of any Mortgaged
Property for each year beginning in 2006. The Servicer shall file reports
relating to each instance occurring during the previous calendar year in which
the Servicer (i) on behalf of the Trust acquires an interest in any Mortgaged
Property through foreclosure or other comparable conversion in full or partial
satisfaction of a Mortgage Loan or (ii) knows or has reason to know that any
Mortgaged Property has been abandoned. The reports from the Servicer shall
be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050J, 6050H and 6050P of the Code.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section
4.01. Master
Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer the Mortgage Loans in accordance with the
terms of the Agreement and shall have full power and authority to do any and
all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with
the
Servicer as necessary from time-to-time to carry out the Master Servicer’s
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by the Servicer
and
shall cause the Servicer to perform and observe the covenants, obligations
and
conditions to be performed or observed by the Servicer under this Agreement.
The
Master Servicer shall independently and separately monitor the Servicer's
servicing activities with respect to each related Mortgage Loan, reconcile
the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicer’s and Master Servicer’s records. The Master Servicer shall reconcile
the results of its Mortgage Loan monitoring with the actual remittances of
the
Servicer to the Payment Account pursuant to the terms hereof based on
information provided to the Master Servicer by the Securities Administrator
pursuant to the third paragraph of Section 6.01(j) of the
Indenture.
The
Indenture Trustee shall provide access and shall cause the Custodian to provide
access and the Securities Administrator shall provide access, in each case
to
the records and documentation in possession of the Indenture Trustee, the
Custodian or the Securities Administrator, as the case may be, regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Noteholders, the FDIC, and the supervisory agents and examiners of the FDIC,
such access being afforded only upon reasonable prior written request and during
normal business hours at the office of the Indenture Trustee, the Custodian
or
the Securities Administrator; provided,
however,
that,
unless otherwise required by law, none of the Indenture Trustee, the Custodian
or the Securities Administrator shall be required to provide access to such
records and documentation if the provision thereof would violate the legal
right
to privacy of any Mortgagor. The Indenture Trustee shall allow representatives
of the above entities and shall cause the Custodian to allow representatives
of
the above entities and the Securities Administrator shall allow representatives
of the above entities, in each case to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Indenture Trustee’s, the Custodian’s or the Securities
Administrator’s, as the case may be, actual costs.
Section
4.02. Reserved.
Section
4.03. Monitoring
of Servicer.
(a) The
Master Servicer shall be responsible for monitoring the compliance by the
Servicer with its duties under this Agreement. In the review of the Servicer’s
activities, the Master Servicer may rely upon an Officer’s Certificate of the
Servicer with regard to the Servicer’s compliance with the terms of this
Agreement. In the event that the Master Servicer, in its judgment, determines
that the Servicer should be terminated in accordance with the terms hereof,
or
that a notice should be sent pursuant to the terms hereof with respect to the
occurrence of an event that, unless cured, would constitute a Servicer Event
of
Default, the Master Servicer shall notify the Servicer, the Seller and the
Indenture Trustee thereof and the Master Servicer shall issue such notice or
take such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Indenture Trustee and the Noteholders,
shall enforce the obligations of the Servicer under this Agreement, and shall,
in the event that the Servicer fails to perform its obligations in accordance
with this Agreement, subject to the preceding paragraph, Article III and Article
VI, cause the Indenture Trustee to terminate the rights and obligations of
the
Servicer hereunder in accordance with the provisions of Article VI. Such
enforcement, including, without limitation, the legal prosecution of claims
and
the pursuit of other appropriate remedies, shall be in such form and carried
out
to such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans; provided
that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) The
Master Servicer shall be entitled to be reimbursed by the Servicer (or from
amounts on deposit in the Payment Account if the Servicer does not timely
fulfill its obligations hereunder) for all reasonable out-of-pocket or third
party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from the
Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Master Servicer to correct any errors or insufficiencies in the servicing data
or otherwise to enable the Master Servicer to service the Mortgage Loans
properly and effectively, upon presentation of reasonable documentation of
such
costs and expenses.
(d) The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement.
(e) If
the
Master Servicer acts as successor Servicer, it will not assume liability for
the
representations and warranties of the terminated Servicer.
(f) The
Master Servicer shall not be liable for any acts or omissions of the
Servicer.
Section
4.04. Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or trustees.
Upon
reasonable request of the Depositor, the Master Servicer shall provide to the
Depositor evidence of such insurance or fidelity bond.
Section
4.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Noteholders and the Indenture Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property. The Indenture Trustee shall furnish
the
Master Servicer, upon written request from a Master Servicing Officer, with
any
powers of attorney (in form acceptable to the Indenture Trustee) empowering
the
Master Servicer or the Servicer to execute and deliver instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
to
foreclose upon or otherwise liquidate Mortgaged Property, and to appeal,
prosecute or defend in any court action relating to the Mortgage Loans or the
Mortgaged Property, in accordance with this Agreement, and the Indenture Trustee
shall execute and deliver such other documents, as the Master Servicer or the
Servicer may request, to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Master Servicing Practices (and the Indenture
Trustee shall have no liability for misuse of any such powers of attorney by
the
Master Servicer or the Servicer and shall be indemnified by the Master Servicer
or the Servicer, as applicable, for any cost, liability or expense incurred
by
the Indenture Trustee in connection with such Person’s use or misuse of any such
power of attorney). If the Master Servicer or the Indenture Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Indenture Trustee or
that
the Indenture Trustee would be adversely affected under the “doing business” or
tax laws of such state if such action is taken in its name, the Master Servicer
shall join with the Indenture Trustee in the appointment of a co-trustee
pursuant to Section 6.10 of the Indenture. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Indenture
Trustee, be deemed to be the agent of the Indenture Trustee.
Section
4.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to enforce such clauses in accordance with
this Agreement.
Section
4.07. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit to the Indenture Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer
from
time to time as are required by the terms hereof to be delivered to the
Indenture Trustee or Custodian. Any funds received by the Master Servicer in
respect of any Mortgage Loan or which otherwise are collected by the Master
Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be remitted to the Securities Administrator for deposit
in
the Payment Account. The Master Servicer shall, and, subject to Section 3.11,
shall cause the Servicer to, provide access to information and documentation
regarding the Mortgage Loans to the Indenture Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Noteholders that are savings and loan associations, banks or
insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All
funds
collected or held by, or under the control of, the Master Servicer, in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, shall be remitted
to the Securities Administrator for deposit in the Payment Account.
Section
4.08. Possession
of Certain Insurance Policies and Documents.
The
Indenture Trustee or the applicable Custodian, shall retain possession and
custody of the originals (to the extent available) of any primary mortgage
insurance policies, or certificate of insurance if applicable, and any Notes
of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts payable in respect of the Notes has been
paid in full and the Master Servicer and the Servicer have otherwise fulfilled
their respective obligations under this Agreement, the Indenture Trustee or
the
Custodian shall also retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause to be delivered to the Indenture
Trustee or the Custodian, upon the execution or receipt thereof the originals
of
any primary mortgage insurance policies, any Notes of renewal, and such other
documents or instruments related to the Mortgage Loans that come into the
possession of the Master Servicer from time to time.
Section
4.09. Compensation
for the Master Servicer.
As
compensation for the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee, payable to the Master
Servicer on each Payment Date (with respect to the calendar month that
immediately preceded the month of such Payment Date) from funds in the Payment
Account. The Master Servicing Fee payable to the Master Servicer in respect
of
any Payment Date shall be reduced in accordance with Section 4.12. The Master
Servicer shall be required to pay all expenses incurred by it in connection
with
its activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
Section
4.10. Reserved.
Section
4.11. Reserved.
Section
4.12. Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
In
the
event that the Servicer fails to perform on any Determination Date its
obligations pursuant to Section 3.14, the Master Servicer shall remit to the
Securities Administrator not later than the Payment Date an amount equal to
the
lesser of (i) the aggregate amounts required to be paid by the Servicer with
respect to Prepayment Interest Shortfalls attributable to Principal Prepayments
on the related Mortgage Loans for the related Payment Date, and not so paid
by
the Servicer and (ii) the Master Servicing Fee for such Payment Date, without
reimbursement therefor.
Section
4.13. Monthly
Advances by the Master Servicer.
If
the
Servicer fails to remit any Monthly Advance required to be made pursuant to
Section 3.15, the Master Servicer shall itself make, or shall cause the
Successor Servicer to make, such Advance. If the Master Servicer determines
that
a Monthly Advance is required, it shall on the Business Day preceding the
related Payment Date immediately following such Determination Date remit to
the
Securities Administrator from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Payment Account immediately available funds in
an
amount equal to such Monthly Advance. The Master Servicer shall be entitled
to
be reimbursed for all Monthly Advances made by it. Notwithstanding anything
to
the contrary herein, in the event the Master Servicer determines in its
reasonable judgment that a Monthly Advance is a Nonrecoverable Advance, the
Master Servicer shall be under no obligation to make such Monthly Advance.
If
the Master Servicer determines that a Monthly Advance is a Nonrecoverable
Advance, it shall, on or prior to the related Payment Date, deliver an Officer’s
Certificate to the Indenture Trustee and the Securities Administrator to such
effect.
Section
4.14. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that the
successor or resulting Person to the Master Servicer or its Affiliate whose
primary business is the servicing of conventional residential mortgage loans
shall be a Person that is an Approved Servicer.
Section
4.15. Resignation
of Master Servicer.
Except
as
otherwise provided in Sections 4.14 and 4.16 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless the
Master Servicer’s duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
independent Opinion of Counsel to such effect delivered to the Issuer, the
Depositor, the Seller and the Indenture Trustee. No such resignation shall
become effective until the Indenture Trustee shall have assumed, or a Successor
Master Servicer shall have been appointed by the Indenture Trustee and until
such successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Indenture
Trustee.
If,
at
any time, the Master Servicer resigns under this Section 4.15, or transfers
or
assigns its rights and obligations under Section 4.16, or is removed as Master
Servicer pursuant to Section 6.03, then at such time Xxxxx Fargo Bank, N.A.
also
shall resign (and shall be entitled to resign) as Securities Administrator,
Paying Agent and Note Registrar. In such event, the obligations of each such
party shall be assumed by the Indenture Trustee or such Successor Master
Servicer appointed by the Indenture Trustee (subject to the provisions of
Section 6.04); provided, however, the Indenture Trustee shall have the same
right to appoint, or petition a court to appoint, a successor Securities
Administrator, Paying Agent or Note Registrar as it has pursuant to Section
6.04
with respect to a successor Master Servicer.
Section
4.16. Assignment
or Delegation of Duties by the Master Servicer.
Except
as
expressly provided herein, the Master Servicer shall not assign or transfer
any
of its rights, benefits or privileges hereunder to any other Person, or delegate
to or subcontract with, or authorize or appoint any other Person to perform
any
of the duties, covenants or obligations to be performed by the Master Servicer
hereunder; provided,
however,
that the
Master Servicer shall have the right with the prior written consent of the
Indenture Trustee and the Seller (which consent shall not be unreasonably
withheld), and upon delivery to the Indenture Trustee and the Seller of a letter
from each Rating Agency to the effect that such action shall not result in
a
downgrading of the Notes, to delegate or assign to or subcontract with or
authorize or appoint any qualified Person to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master Servicer
hereunder. Notice of such permitted assignment shall be given promptly by the
Master Servicer to the Seller and the Indenture Trustee. If, pursuant to any
provision hereof, the duties of the Master Servicer are transferred to a
Successor Master Servicer, the entire amount of the Master Servicing Fees and
other compensation payable to the Master Servicer pursuant hereto shall
thereafter be payable to such Successor Master Servicer. Such Successor Master
Servicer shall also pay the fees of the Indenture Trustee and the Securities
Administrator, as provided herein.
Section
4.17. Foreclosure
Rights.
(a) For
so long as the Seller is the Majority Certificateholder, the Servicer shall
not
commence foreclosure proceedings with respect to a Mortgage Loan unless (i)
no
later than five Business Days prior to its commencement of such foreclosure
proceedings, it provides written notice to the Master Servicer and the Majority
Certificateholder of its intention to do so, and (ii) the Majority
Certificateholder consents in writing to such action; provided,
however,
if the
Majority Certificateholder does not consent in writing within five Business
Days
of receipt of written notice from the Servicer of its intention to foreclose,
consent shall be deemed to have been given by the Majority
Certificateholder.
(b) In
addition, for so long as the Seller is the Majority Certificateholder, in the
event that the Servicer determines not to proceed with foreclosure proceedings
with respect to a Mortgage Loan that becomes 60 days or more delinquent and
the
Servicer has determined that it is unable to collect payments due under such
Mortgage Loan, the Servicer shall, prior to taking any action with respect
to
such Mortgage Loan, promptly provide the Master Servicer and the Majority
Certificateholder with notice of such determination and a description of such
other action that it intends to take with respect to such Mortgage Loan;
provided,
that
the Servicer shall not be permitted to proceed with any such action unless
the
Majority Certificateholder consents in writing to the Servicer taking such
action; provided,
however,
if the
Majority Certificateholder does not consent in writing within five Business
Days
of receipt of written notice from the Servicer of its intention to take such
action, consent shall be deemed to have been given by the Seller.
(c) If
the
Majority Certificateholder does not consent to an action or contemplated action
of the Servicer pursuant to either (a) or (b) above, then the Majority
Certificateholder shall instruct the Servicer to hire, at the Majority
Certificateholder’s sole cost and expense, three appraisal firms, selected by
the Servicer in its sole and absolute discretion from the list of appraisal
firms attached as Exhibit H, to compute the fair value of the Mortgaged Property
relating to the related Mortgage Loan utilizing the Xxxxxx Mae Form 2055
Exterior-Only Inspection Residential Appraisal Report (each such appraisal-firm
computation, a “Fair Value Price”), in each case (other than as set forth in (d)
below) no later than 30 days from the date of such Majority Certificateholder
objection. If the Servicer shall have received three Fair Value Prices by the
end of such 30-day period, then the Majority Certificateholder shall, no later
than 5 business days after the expiration of such 30-day period, purchase such
Mortgage Loan and the related Mortgaged Property at an amount equal to the
sum
of (i) accrued and unpaid interest on such Mortgage Loan as of such purchase
date (“Accrued Interest”), (ii) the highest of such three Fair Value Prices
respectively determined by such appraisal firms, and shall promptly deliver
such
amount to the Servicer for deposit into the Custodian Account and (iii) all
unreimbursed servicing advances. All costs relating to the computation of the
related Fair Value Prices shall be for the account of the Majority
Certificateholder and shall be paid by the Majority Certificateholder at the
time of such Mortgage Loan and the related Mortgaged Property are purchased
by
the Majority Certificateholder.
(d) Notwithstanding
anything herein to the contrary, the Majority Certificateholder shall not be
entitled to any of its rights set forth herein with respect to a Mortgage Loan
following its failure to purchase such Mortgage Loan and the related Mortgaged
Property, at the related purchase price set forth in this Section 4.17 within
the timeframe set forth in this Section 4.17 following the Majority
Certificateholder’s objection to an action of the Servicer, and the Servicer
shall provide the Master Servicer written notice of such failure.
(e) Any
notice, confirmation, instruction or objection pursuant to paragraphs (a),
(b)
and (c) above may be delivered via facsimile or other written or electronic
communication as the parties hereto and the Majority Certificateholder may
agree
to from time to time.
(f) For
the
avoidance of doubt, the Majority Certificateholder’s rights set forth in this
Section 4.17 are intended to provide the Majority Certificateholder, for so
long
as it owns 100% of the Owner Trust Certificates (each, as defined in Appendix
A
of the Indenture) and has not forfeited its right under this Section 4.17 as
set
forth in clause (d) above, with the unilateral right to control foreclosure
decisions in respect of delinquent and defaulted Mortgage Loans, and certain
exclusive purchase rights so as to maximize the recovery value on delinquent
and
defaulted Mortgage Loans.
To
the
extent that the Majority Certificateholder purchases any Mortgage Loan pursuant
to this Section 4.17, the Servicer will continue to service such Mortgage Loan
in accordance with this Agreement. The parties acknowledge that, in such event,
the Master Servicer will have no duty or responsibility to master service any
such Mortgage Loan.”
ARTICLE
V
THE
MASTER SERVICER AND THE SERVICER
Section
5.01. Liability
of the Master Servicer and the Servicer.
The
Master Servicer and the Servicer shall be liable in accordance herewith only
to
the extent of the obligations specifically imposed upon and undertaken by the
Master Servicer or Servicer, as the case may be, herein.
Section
5.02. Merger
or Consolidation of, or Assumption of the Obligations of the
Servicer.
Any
corporation into which the Servicer may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the
Servicer shall be a party, or any corporation succeeding to the business of
the
Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however,
that
the Successor Servicer shall satisfy all the requirements of Section 6.02 with
respect to the qualifications of a Successor Servicer.
Section
5.03. Limitation
on Liability of the Servicer, the Master Servicer and Others.
Neither
the Master Servicer, the Servicer nor any of the directors or officers or
employees or agents of the Master Servicer or the Servicer shall be under any
liability to the Trust or the Noteholders for any action taken or for refraining
from the taking of any action by the Servicer or the Master Servicer in good
faith pursuant to this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Master Servicer or the Servicer or any
such
Person against any liability which would otherwise be imposed by reason of
its
willful misfeasance, bad faith or negligence in the performance of duties of
the
Master Servicer or the Servicer or by reason of its reckless disregard of its
obligations and duties of the Master Servicer or the Servicer hereunder. The
Master Servicer or the Servicer and any director or officer or employee or
agent
of the Master Servicer or the Servicer may rely in good faith on any document
of
any kind prima
facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Servicer and any director or officer or employee or agent of the Servicer
shall be indemnified by the Trust and held harmless against any loss, liability
or expense incurred in connection with any legal action relating to this
Agreement or the Notes, other than any loss, liability or expense related to
any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement or results
from a breach of representation by the Servicer) and any loss, liability or
expense incurred by reason of its willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of its reckless disregard
of
obligations and duties hereunder. The Master Servicer shall be indemnified
by
the Issuer pursuant to Section 6.07 of the Indenture.
The
Master Servicer or the Servicer shall be under no obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties
hereunder and that in its opinion, may involve it in any expense or liability;
provided,
however,
that
the Servicer and the Master Servicer may undertake any such action which it
may
deem necessary or desirable in respect of this Agreement, and the rights and
duties of the parties hereto and the interests of the Noteholders hereunder.
In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust. The Servicer’s right to indemnity or reimbursement pursuant to this
Section 5.03 shall survive any resignation or termination of the Servicer
pursuant to Section 5.04 or 6.01 with respect to any losses, expenses, costs
or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination). The Master
Servicer’s right to indemnity or reimbursement pursuant to this Section 5.03
shall survive any resignation or termination of the Master Servicer pursuant
to
Section 4.15 or 6.03 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination).
Section
5.04. Servicer
Not to Resign; Pledge of Servicing Rights.
Subject
to the provisions of Section 5.02, the Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) upon determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it or its subsidiaries or Affiliates,
the other activities of the Servicer so causing such a conflict being of a
type
and nature carried on by the Servicer or its subsidiaries or Affiliates at
the
date of this Agreement or (ii) upon the proposal by the Servicer or the
Servicing Rights Owner of an Approved Servicer to the Seller, the Depositor
and
the Master Servicer in writing; provided,
however,
that no
such resignation by the Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Master Servicer as Successor Servicer
shall have assumed the Servicer’s responsibilities and obligations hereunder or
the Master Servicer shall have designated a successor servicer in accordance
with Section 6.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 6.01 and 6.02
as
obligations that survive the resignation or termination of the Servicer. Any
such determination permitting the resignation of the Servicer pursuant to clause
(i) above shall be evidenced by an Opinion of Counsel to such effect delivered
to the Seller, the Depositor, the Master Servicer, the Securities Administrator
and the Indenture Trustee.
Notwithstanding
the foregoing, on or after the Closing Date, the Servicer or the Servicing
Rights Owner may pledge and assign all of its right, title and interest in,
to
and under this Agreement to one or more lenders (“Servicing Rights Pledgees”)
selected by the Servicer or the Servicing Rights Owner. Provided that no
Servicer Event of Default exists, the Indenture Trustee and the Master Servicer
agree that upon delivery to the Indenture Trustee and the Master Servicer by
a
Servicing Rights Pledgee of a letter signed by the Servicer whereunder the
Servicer resigns as servicer under this Agreement pursuant to this Section
5.04,
the Master Servicer shall appoint such Servicing Rights Pledgee or its designee
as Successor Servicer, provided that at the time of such appointment, such
Servicing Rights Pledgee or its designee is an Approved Servicer and that such
Servicing Rights Pledgee or its designee agrees to be subject to the terms
of
this Agreement.
Section
5.05. Delegation
of Duties.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 5.04. The Servicer shall
provide the Indenture Trustee, the Master Servicer and the Securities
Administrator with written notice prior to the delegation of any of its duties
to any Person other than any of the Servicer’s Affiliates or their respective
successors and assigns.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
or
Subcontrator to fulfill any of the obligations of the Servicer as servicer
under
this Agreement unless such party agrees to be subject to the applicable
requirements of Section 3.09, Section 3.10 and Section 3.13 of this
Agreement.
Section
5.06. Indemnification
of the Trust by the Servicer and the Master Servicer.
(a) The
Servicer shall indemnify and hold harmless the Trust, the Depositor, the Master
Servicer, the Securities Administrator and the Indenture Trustee from and
against any loss, liability, expense, damage or injury suffered or sustained
by
reason of the Servicer’s willful misfeasance, bad faith or negligence in the
performance of its activities in servicing or administering the Mortgage Loans
pursuant to this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable attorneys’ fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding
or
claim related to the Servicer’s misfeasance, bad faith or negligence. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this Section 5.06(a) shall survive the termination of this
Agreement.
(b) If
the
Servicer fails to make when due (without regard to any cure period) any Monthly
Advance or deposit required by it hereunder, the Servicer shall pay the
Securities Administrator for the account of the Securities Administrator
interest at the prime rate from the date on which such payment was due (without
regard to any cure period) to and including the date on which the Servicer
makes
such payment.
(c) The
Master Servicer shall indemnify and hold harmless the Trust, the Securities
Administrator, the Servicer and the Indenture Trustee from and against any
loss,
liability, expense, damage or injury suffered or sustained by reason of the
Master Servicer’s willful misfeasance, bad faith or negligence in the
performance of its activities in master servicing or administering the Mortgage
Loans pursuant to this Agreement, including, but not limited to, any judgment,
award, settlement, reasonable attorneys’ fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim related to the Master Servicer’s misfeasance, bad faith or
negligence. Any such indemnification shall not be payable from the assets of
the
Trust. The provisions of this Section 5.06(c) shall survive the termination
of
this Agreement.
(d) If
the
Master Servicer fails to make when due (without regard to any cure period)
any
Monthly Advance or deposit required by it hereunder, the Master Servicer shall
pay the Securities Administrator for the account of the Securities Administrator
interest at the prime rate from the date on which such payment was due (without
regard to any cure period) to and including the date on which the Master
Servicer makes such payment.
(e) Each
of
the Depositor, Master Servicer, Securities Administrator and any Servicing
Function Participant engaged by any such party, respectively, shall indemnify
and hold harmless the Master Servicer, the Securities Administrator and the
Depositor, respectively, and each of its directors, officers, employees, agents,
and affiliates from and against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and
other
costs and expenses arising out of or based upon (a) any breach by such party
of
any if its obligations hereunder, including particularly its obligation to
provide any annual statement of compliance, annual assessment of compliance
with
Servicing Criteria or attestation report or any information, data or materials
required to be included in any Exchange Act report, (b) any material
misstatement or omission in any information, data or materials provided by
such
party including any material misstatement or material omission in (i) any annual
statement of compliance, annual assessment of compliance with Servicing Criteria
or attestation report delivered by it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, or (ii) any Additional Form 10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure Information
provided by it, or (c) the negligence, bad faith or willful misconduct of such
indemnifying party in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, the Securities Administrator or the Depositor,
as
the case may be, then each such party agrees that it shall contribute to the
amount paid or payable by the Master Servicer, the Securities Administrator
or
the Depositor, as applicable, as a result of any claims, losses, damages or
liabilities incurred by such party in such proportion as is appropriate to
reflect the relative fault of the indemnified party on the one hand and the
indemnifying party on the other. This indemnification shall survive the
termination of this Agreement or the termination of any party to this
Agreement.
ARTICLE
VI
DEFAULT
Section
6.01. Servicer
Events of Default.
(a) If
any
one of the following events (“Servicer Events of Default”) shall occur and be
continuing:
(i) (A)The
failure by the Servicer to make any Monthly Advance which continues unremedied
for a period of one (1) Business Day after it was due; (B) any other
failure by the Servicer to deposit in the Collection Account or the Payment
Account any deposit required to be made under the terms of this Agreement which
continues unremedied for a period of two (2) Business Days after such deposit
was due or (C) the failure by the Servicer to make any remittances into the
Payment Account required pursuant to Section 3.03(i) which continues unremedied
for a period of one (1) Business Day after it was due;
(ii) (A)The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of sixty (60) days, or (B) the failure by
the
Servicer duly to observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement, which failure materially and adversely affects the interests of
the
Noteholders, continues unremedied for a period of sixty (60) days, after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Master Servicer, the Securities
Administrator or the Indenture Trustee or to the Servicer and the Master
Servicer, the Securities Administrator or the Indenture Trustee, by the Holders
of not less than 25% of the aggregate Note Balance of the Notes; provided,
however,
that in
the case of a failure that cannot be cured within sixty (60) days, the cure
period may be extended if the Servicer can demonstrate to the reasonable
satisfaction of the Master Servicer, the Securities Administrator, the Indenture
Trustee and the Seller that the Servicer is diligently pursuing remedial
action;
(iii) The
filing of a petition against the Servicer in a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of thirty (30) consecutive days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer; or the Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; or
(v) the
Servicer Termination Test is failed; or
(vi) (a)
any
reduction or withdrawal of the ratings or any shadow ratings of any Class of
Notes attributable principally to the Servicer or the servicing of the Mortgage
Loans or (b) any placement by a Rating Agency of any Class of Notes on credit
watch with negative implications attributable principally to the Servicer or
the
servicing of the Mortgage Loans; or
(vii) any
reduction or withdrawal of the ratings of the Servicer as a servicer of subprime
mortgage loans by one or more of the Rating Agencies that maintains a servicer
rating system and a rating on the Notes to “below average” or below;
or
(viii) the
failure by the Servicer to comply, within the required time periods, with
Section 3.09 or the certification described under Section 3.10;
(ix) the
failure by the Servicer to provide, within the time frame specified herein,
any
required reports or data pertaining to the Mortgage Loans, which failure
continues unremedied for a period of fifteen days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Master Servicer; or
(x) the
identification under any filing pursuant to Section 404 of the Xxxxxxxx-Xxxxx
Act of 2002 which identifies material weaknesses in connection with the
Servicer’s ongoing evaluation of internal controls which materially and
adversely affect the Servicer’s ability to perform any of its duties under this
Agreement.
(b) then,
and
in each and every such case, so long as a Servicer Event of Default shall not
have been remedied, (x) with respect solely to clause (a)(i)(A) above, (1)
on
the related Deposit Date, upon receipt of written notice or discovery by the
Master Servicer or a Responsible Officer of the Indenture Trustee or of the
Securities Administrator of such failure, the Master Servicer shall give
telephonic notice (by no later than 5:00 p.m. New York time on such Deposit
Date) of the failure to make a Monthly Advance to a Servicing Officer of the
Servicer and, to the extent the applicable current contact information has
been
provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the
Business Day immediately following the related Deposit Date, upon receipt of
written notice or discovery by the Master Servicer or a Responsible Officer
of
the Indenture Trustee or of the Securities Administrator of the continued
failure to make such Monthly Advance, the Master Servicer shall promptly give
telephonic notice of such failure to a Servicing Officer of the Servicer and
the
Master Servicer shall direct the Indenture Trustee to terminate all of the
rights and obligations of the Servicer under this Agreement and the Successor
Servicer appointed in accordance with Section 6.02 shall immediately make such
Monthly Advance prior to the distribution of funds on the related Payment Date
and assume, pursuant to Section 6.02, the duties of a Successor Servicer and
(y)
in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may
(and
shall at the direction of the Holders of not less than 51% of the aggregate
Note
Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through
(x)
above, the Indenture Trustee shall, at the direction of the Holders of not
less
than 51% of the aggregate Note Balance of the Notes by notice then given in
writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights
Pledgee (to the extent the applicable current contact information has been
provided to the Master Servicer), the Rating Agencies and if given by Holders
of
Notes, to the Indenture Trustee, terminate all of the rights and obligations
of
the Servicer as servicer under this Agreement. On or after receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes or the Mortgage Loans or
otherwise, shall pass to and be vested in the Successor Servicer pursuant to
and
under this Section 6.01; and, without limitation, the Successor Servicer is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of each Mortgage Loan and related
documents, or otherwise. The Servicer agrees to cooperate with the Successor
Servicer, the Master Servicer, the Securities Administrator and the Indenture
Trustee in effecting the termination of the responsibilities and rights of
the
Servicer hereunder, including, without limitation, the transfer to the Successor
Servicer for the administration by it of all cash amounts that shall at the
time
be held by the predecessor Servicer and to be deposited by it in the Collection
Account, or that have been deposited by the predecessor Servicer in the
Collection Account or thereafter received by the predecessor Servicer with
respect to the Mortgage Loans. All Servicing Transfer Costs and other reasonable
out-of-pocket costs and expenses (including attorneys’ fees) incurred in
connection with transferring the Mortgage Files to the Successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to
this
Section 6.01 shall be paid by the predecessor Servicer within 90 days of written
demand, itemized in reasonable detail, or, to the extent not paid by the
predecessor Servicer, by the Trust prior to payments to Noteholders (or, if
the
predecessor Servicer is the Master Servicer, by the initial Servicer), upon
presentation of reasonable documentation of such costs and expenses. If the
predecessor Servicer is required but fails to pay the amounts specified in
the
preceding sentence and such amounts are paid by the Trust, the Securities
Administrator shall, at the direction and expense of the Certificateholders,
take appropriate action to enforce such obligation and recover such amounts
on
behalf of such Certificateholders.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer shall
continue to be entitled to receive from the Trust, payment of all the accrued
and unpaid portion of the Servicing Fees to which the Servicer would have been
entitled and reimbursement for all outstanding Monthly Advances and Servicing
Advances, including but not limited to trailing expenses representing Servicing
Advances incurred by the Servicer prior to but invoiced after the date of
termination, which amount shall be remitted by the Successor Servicer to the
terminated Servicer as permitted under Section 3.03 on a first-in, first-out
basis. The Servicer shall continue to be entitled to the benefits of Section
5.03, notwithstanding any termination hereunder, with respect to events
occurring prior to such termination.
(c) Upon
the
occurrence of a Servicer Event of Default, the Servicer shall act as Servicer
under this Agreement, subject to the right of removal set forth in subsection
(b) hereof, for an initial period commencing on the date on which such Servicer
Event of Default occurred and ending on the last day of the calendar quarter
in
which such Servicer Event of Default occurred, which period may be extended
by
the Master Servicer (an “Extension Notice”) for a succeeding quarterly period
ending on December 31, March 31, June 30 and September 30 of each year (each
such quarterly period for which the Servicer shall be designated to act as
Servicer hereunder, a “Servicer Term of Service”) until such time as the Master
Servicer, the Securities Administrator and the Indenture Trustee receives
written direction from the Holders of not less than 51% of the aggregate Note
Balance of the Notes not to deliver an Extension Notice, in which event the
Master Servicer shall follow such direction; provided that nothing in this
clause (c) shall prohibit the Master Servicer from removing (or prohibit
Noteholders from directing the Indenture Trustee or the Securities Administrator
to direct the Master Servicer to remove) the Servicer pursuant to clause (b)
above. In the event the Master Servicer fails to deliver an Extension Notice
prior to the end of any Servicer Term of Service, the Servicer shall be
automatically terminated.
(d) If
the
Successor Servicer or another Person succeeds to the obligations of Servicer
hereunder, the term of the Successor Servicer or such Person shall not be
limited unless and until a Servicer Event of Default thereafter occurs with
respect to such Successor Servicer or other Person. At such time, the provisions
of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer
and the Person then-obligated to succeed such then-acting Servicer.
Section
6.02. Appointment
of Successor Servicer.
(a) The
Issuer and the Indenture Trustee hereby appoint, and Xxxxx Fargo Bank, N.A.,
hereby accepts appointment, on behalf of itself or an affiliate, subject to
the
provisions of Section 5.04 hereof, upon receipt by the Servicer of a notice
of
termination pursuant to Section 6.01 or upon resignation of the Servicer
pursuant to Section 5.04(i), to be the successor (the “Successor Servicer”) in
all respects to the Servicer in its capacity as servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject
to
all the responsibilities, duties and liabilities relating thereto placed on
the
Servicer by the terms and provisions hereof arising on and after its succession;
provided,
however,
that,
without affecting the immediate termination of the rights of the Servicer
hereunder, it is understood and acknowledged by the parties hereto that there
will be a period of transition not to exceed 100 days (the “Servicer Transition
Period”) after receipt by the Servicer of a notice of termination before the
servicing transfer is fully effected.
During
the Servicer Transition Period, none of the Successor Servicer, the Securities
Administrator nor the Indenture Trustee shall be responsible for the lack of
information and documents that it cannot reasonably obtain on a practicable
basis under the circumstances.
As
compensation therefor, the Successor Servicer shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such
notice of termination had been given. Notwithstanding the above, if the
Successor Servicer is unwilling or legally unable to act as successor servicer,
the Master Servicer may appoint or petition a court of competent jurisdiction
to
appoint, any established housing and home finance institution, bank or other
mortgage loan or home equity loan servicer that is an Approved Servicer as
the
successor to the Servicer hereunder in the assumption of all or any part of
the
responsibilities, duties or liabilities of the Servicer hereunder; provided
that the
appointment of any such Successor Servicer will not result in the qualification,
reduction or withdrawal of the ratings assigned to the Offered Notes by the
Rating Agencies. Pending appointment of a successor to the Servicer hereunder,
unless the Successor Servicer is prohibited by law from so acting, the Successor
Servicer shall act in such capacity as hereinabove provided. In connection
with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on the Mortgage Loans in an amount equal to the
compensation which the Servicer would otherwise have received pursuant to
Section 3.08 (or such lesser compensation as the Master Servicer and such
successor shall agree). The appointment of a Successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer to pay any deductible under
an
insurance policy pursuant to Section 3.05 or to indemnify the Indenture Trustee,
the Master Servicer and the Securities Administrator pursuant to Section 5.06,
nor shall any Successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Indenture Trustee, the Master Servicer, the Securities
Administrator or a Successor Servicer shall have no responsibility or obligation
(i) to repurchase or substitute for any of the Mortgage Loans or (ii) for any
acts or omissions of a predecessor Servicer during the Servicer Transition
Period. The Indenture Trustee, the Master Servicer, the Securities Administrator
and such successor shall take such action, consistent with this Agreement,
as
shall be necessary to effectuate any such succession.
Notwithstanding
the foregoing, if a Servicer Event of Default occurs, the Servicer, the
Servicing Rights Owner or the Servicing Rights Pledgee shall have a period
of up
to twenty (20) days after receipt of a notice of termination to appoint an
Approved Servicer as Successor Servicer. Such right of appointment shall
terminate immediately, however, if such terminated Servicer, the Servicing
Rights Owner or the Servicing Rights Pledgee fails to make any required Monthly
Advance, Servicing Advance or any other deposit required to be made pursuant
to
the terms of this Agreement, as and when required by this Agreement (taking
into
account any applicable cure period). All costs and expenses associated with
the
appointment, whether or not consummated, and the subsequent transfer of
servicing (which must be completed within 100 days after receipt by the Servicer
of a notice of termination) are required to be paid by the terminated Servicer,
the Servicing Rights Owner or the Servicing Rights Pledgee out of the proceeds
of sale or otherwise. Any proceeds remaining after such costs and expenses
have
been paid for by the terminated Servicer, shall be the property of the
terminated Servicer, the Servicing Rights Owner or the Servicing Rights Pledgee,
as applicable.
(b) Any
successor, including the Successor Servicer, to the Servicer as servicer shall
during the term of its service as servicer (i) continue to service and
administer the Mortgage Loans for the benefit of Noteholders in accordance
with
all of the terms and provisions hereof and (ii) maintain in force a policy
or
policies of insurance covering errors and omissions in the performance of its
obligations as Servicer hereunder and a fidelity bond in respect of its
officers, employees and agents to the same extent as the Servicer is so required
pursuant to Section 3.12.
(c) In
connection with the termination or resignation of the Servicer hereunder, either
(i) the Successor Servicer, including the Master Servicer if the Master Servicer
is acting as Successor Servicer, shall represent and warrant that it is a member
of MERS in good standing and shall agree to comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, or (ii) the predecessor Servicer,
at its sole expense, shall cooperate with the Successor Servicer either (x)
in
causing MERS to execute and deliver an assignment of Mortgage in recordable
form
to transfer the Mortgage from MERS to the Indenture Trustee and to execute
and
deliver such other notices, documents and other instruments as may be necessary
or desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS® System to the Successor Servicer or (y) in causing
MERS to designate on the MERS® System the Successor Servicer as the servicer of
such Mortgage Loan (at the cost and expense of the Successor Servicer to the
extent such costs relate to the qualification of such Successor Servicer as
a
member of MERS, otherwise at the cost and expense of the predecessor Servicer).
The predecessor Servicer shall file or cause to be filed any such assignment
in
the appropriate recording office. The Successor Servicer shall cause such
assignment to be delivered to the Indenture Trustee’s Custodian promptly upon
receipt of the original with evidence of recording thereon or a copy certified
by the public recording office in which such assignment was
recorded.
Section
6.03. Master
Servicer Events of Default.
(a) If
any
one of the following events (“Master Servicer Events of Default”) shall occur
and be continuing:
(i) Any
failure by the Master Servicer to furnish the Securities Administrator the
Mortgage Loan data sufficient to prepare the reports described in Section 7.05
of the Indenture which continues unremedied for a period of one Business Day
after the date upon which written notice of such failure shall have been given
to such Master Servicer by the Indenture Trustee or the Securities Administrator
or to such Master Servicer, the Securities Administrator and the Indenture
Trustee by the Holders of not less than 25% of the aggregate Note Balance of
the
Notes; or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements (other than those
referred to in clauses (viii) and (ix) below) on the part of the Master Servicer
contained in this Agreement which continues unremedied for a period of thirty
(30) days after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Master Servicer by the
Indenture Trustee or the Securities Administrator, or to the Master Servicer,
the Securities Administrator and the Indenture Trustee by the Holders of not
less than 25% of the aggregate Note Balance of the Notes; or
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days
or
any Rating Agency reduces or withdraws or threatens to reduce or withdraw the
rating of the Notes because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a Successor Master Servicer as specified in
Section 6.04 hereof; or
(vii) If
a
representation or warranty set forth in Section 2.01(b) hereof shall prove
to be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Noteholders, and the circumstance or condition
in
respect of which such representation or warranty was incorrect shall not have
been eliminated or cured within 30 days after the date on which written notice
of such incorrect representation or warranty shall have been given to the Master
Servicer by the Indenture Trustee or the Securities Administrator, or to the
Master Servicer, the Securities Administrator and the Indenture Trustee by
the
Holders of not less than 25% of the aggregate Note Balance of the Notes;
or
(viii) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Indenture
Trustee and the
Holders of not less than 50% of the aggregate Note Balance of the
Notes;
or
(ix) After
receipt of notice from the Indenture Trustee, any failure of the Master Servicer
to make any Monthly Advances when such Monthly Advances are due, as required
to
be made hereunder.
(b) then,
and
in each and every such case, so long as a Master Servicer Event of Default
shall
not have been remedied, (x) with respect solely to clause (ix) above, upon
receipt of written notice or discovery by a Responsible Officer of the Indenture
Trustee or of the Securities Administrator of such failure, the Indenture
Trustee shall give immediate telephonic notice of such failure to a Master
Servicing Officer of the Master Servicer and the Indenture Trustee shall
terminate all of the rights and obligations of the Master Servicer under this
Agreement and the Successor Master Servicer appointed in accordance with Section
6.02 shall immediately make such Monthly Advance (provided, if the Sucessor
Master Servicer determines in its reasonable judgment that a Monthly Advance
is
a Nonrecoverable Advance, the Sucessor Master Servicer shall be under no
obligation to make such Monthly Advance) prior to the payment of funds on the
related Payment Date and assume, pursuant to Section 6.04, the duties of a
Successor Master Servicer and (y) in the case of clauses (i), (ii), (iii),
(iv),
(v), (vi), (vii) and (viii) above, the Indenture Trustee shall, at the direction
of the Holders of not less than 51% of the aggregate Note Balance of the Notes
by notice then given in writing to the Master Servicer (and to the Indenture
Trustee if given by Holders of Notes), terminate all of the rights and
obligations of the Master Servicer as servicer under this Agreement. Any such
notice to the Master Servicer shall also be given to each Rating Agency and
the
Seller. On or after receipt by the Master Servicer of such written notice,
all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Notes or the Mortgage Loans or otherwise, shall pass to and
be
vested in the Successor Master Servicer pursuant to and under this Section
6.03;
and, without limitation, the Successor Master Servicer is hereby authorized
and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement of each Mortgage Loan and related documents, or otherwise. The
Master Servicer agrees to cooperate with the Successor Master Servicer, the
Servicer, the Securities Administrator and the Indenture Trustee in effecting
the termination of the responsibilities and rights of the Master Servicer
hereunder. All Servicing Transfer Costs and other reasonable out-of-pocket
costs
and expenses (including attorneys’ fees) incurred in connection with
transferring any Mortgage Files to the Successor Master Servicer and amending
this Agreement to reflect such succession as Master Servicer pursuant to this
Section 6.03 shall be paid by the predecessor Master Servicer within 90 days
of
written demand, itemized in reasonable detail, or, to the extent not paid by
the
predecessor Master Servicer, by the Trust prior to payments to Noteholders
(or,
if the predecessor Master Servicer is the Indenture Trustee, by the initial
Master Servicer), upon presentation of reasonable documentation of such costs
and expenses. If the predecessor Master Servicer is required but fails to pay
the amounts specified in the preceding sentence and such amounts are paid by
the
Trust, the Securities Administrator shall, at the direction and expense of
the
Certificateholders, take appropriate action to enforce such obligation and
recover such amounts on behalf of such Certificateholders.
Notwithstanding
any termination of the activities of the Master Servicer hereunder, the Master
Servicer shall continue to be entitled to receive from the Trust, payment of
all
the accrued and unpaid portion of the Master Servicing Fees to which the Master
Servicer would have been entitled and reimbursement for all outstanding Monthly
Advances which amount shall be remitted by the Successor Master Servicer to
the
terminated Master Servicer as permitted under Section 3.01 of the Indenture
on a
first-in, first-out basis. The Master Servicer shall continue to be entitled
to
the benefits of Section 5.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
(c) Upon
the
occurrence of a Master Servicer Event of Default, the Indenture Trustee shall
act as Master Servicer under this Agreement, subject to the right of removal
set
forth in subsection (b) hereof, for an initial period commencing on the date
on
which such Master Servicer Event of Default occurred and ending on the last
day
of the calendar quarter in which such Master Servicer Event of Default occurred,
which period shall be extended by the Indenture Trustee (an “Extension Notice”)
for a succeeding quarterly period ending on December 31, March 31, June 30
and
September 30 of each year (each such quarterly period for which the Master
Servicer shall be designated to act as Master Servicer hereunder, a “Master
Servicer Term of Service”) until such time as the Securities Administrator and
the Indenture Trustee receives written direction from the Holders of not less
than 51% of the aggregate Note Balance of the Notes not to deliver an Extension
Notice, in which event the Indenture Trustee shall follow such direction;
provided that nothing in this clause (c) shall prohibit the Indenture Trustee
from removing (or prohibit Noteholders from directing the Indenture Trustee
or
the Securities Administrator to direct the Indenture Trustee to remove) the
Master Servicer pursuant to clause (b) above. In the event the Indenture Trustee
fails to deliver an Extension Notice prior to the end of any Master Servicer
Term of Service, the Master Servicer shall be automatically
terminated.
(d) If
the
Successor Master Servicer or another Person succeeds to the obligations of
Master Servicer hereunder, the term of the Successor Master Servicer or such
Person shall not be limited unless and until a Master Servicer Event of Default
thereafter occurs with respect to such Successor Master Servicer or other
Person. At such time, the provisions of Section 6.03(c) and (d) shall become
applicable to the then-acting Master Servicer and the Person then-obligated
to
succeed such then-acting Master Servicer.
Section
6.04. Appointment
of Successor Master Servicer.
(a) The
Issuer and the Indenture Trustee hereby appoint, and HSBC Bank USA, National
Association, hereby accepts appointment, on behalf of itself or an affiliate,
subject to the provisions of Sections 4.15 and 6.04(d) hereof, upon receipt
by
the Master Servicer of a notice of termination pursuant to Section 6.03 or
upon
resignation of the Master Servicer pursuant to Section 4.15, to be the successor
(the “Successor Master Servicer”) in all respects to the Master Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties
and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof arising on and after its succession; provided,
however,
that,
without affecting the immediate termination of the rights of the Master Servicer
hereunder, it is understood and acknowledged by the parties hereto that there
will be a period of transition not to exceed 90 days (the “Master Servicer
Transition Period”) before the master servicing transfer is fully
effected.
During
the Master Servicer Transition Period, neither the Successor Master Servicer,
the Securities Administrator nor the Indenture Trustee shall be responsible
for
the lack of information and documents that it cannot reasonably obtain on a
practicable basis under the circumstances.
As
compensation therefor, the Successor Master Servicer shall be entitled to such
compensation as the Master Servicer would have been entitled to hereunder if
no
such notice of termination had been given. Notwithstanding the above, if the
Successor Master Servicer is legally unable to act as successor servicer, the
Indenture Trustee may appoint or petition a court of competent jurisdiction
to
appoint, any established housing and home finance institution, bank or other
mortgage loan or home equity loan servicer that is an Approved Servicer (defined
for this purpose by (i) striking the words “the Master Servicer” in clause 1 of
the definition thereof and (ii) striking clause 2(a) in the definition thereof)
as the successor to the Master Servicer hereunder in the assumption of all
or
any part of the responsibilities, duties or liabilities of the Master Servicer
hereunder; provided
that the
appointment of any such Successor Master Servicer will not result in the
qualification, reduction or withdrawal of the ratings assigned to the Offered
Notes by the Rating Agencies. Pending appointment of a successor to the Master
Servicer hereunder, unless the Successor Master Servicer is prohibited by law
from so acting, the Successor Master Servicer shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on the
Mortgage Loans in an amount equal to the compensation which the Master Servicer
would otherwise have received pursuant to Section 4.09 (or such lesser
compensation as the Indenture Trustee and such successor shall agree). The
appointment of a Successor Master Servicer shall not affect any liability of
the
predecessor Master Servicer which may have arisen under this Agreement prior
to
its termination as Master Servicer to indemnify the Indenture Trustee, the
Servicer and the Securities Administrator pursuant to Section 5.06, nor shall
any Successor Master Servicer be liable for any acts or omissions of the
predecessor Master Servicer or for any breach by such Master Servicer of any
of
its representations or warranties contained herein or in any related document
or
agreement. During the Master Servicer Transition Period, the Indenture Trustee,
the Securities Administrator or a Successor Master Servicer shall have no
responsibility or obligation (i) to repurchase or substitute for any of the
Mortgage Loans or (ii) for any acts or omissions of a predecessor Master
Servicer. The Indenture Trustee, the Securities Administrator and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession.
(b) Any
successor, including the Successor Master Servicer, to the Master Servicer
as
servicer shall during the term of its service as master servicer (i) continue
to
master service and administer the Mortgage Loans for the benefit of Noteholders
and (ii) maintain in force a policy or policies of insurance covering errors
and
omissions in the performance of its obligations as Master Servicer hereunder
and
a fidelity bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section
4.04.
(c) In
connection with the termination or resignation of the Master Servicer hereunder,
the Successor Master Servicer, including the Indenture Trustee if the Indenture
Trustee is acting as Successor Master Servicer, shall represent and warrant
that
it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with
the
servicing of the Mortgage Loans that are registered with MERS.
(d) Notwithstanding
the above, the Indenture Trustee may, if it shall be unwilling to continue
to so
act, or shall, if it is unable to so act, petition a court of competent
jurisdiction to appoint, or appoint on its own behalf any established housing
and home finance institution servicer, master servicer, servicing or mortgage
servicing institution having a net worth of not less than $25,000,000 and
meeting such other standards for a successor master servicer as are set forth
in
this Agreement, as the successor to such Master Servicer in the assumption
of
all of the responsibilities, duties or liabilities of a master servicer, like
the Master Servicer.
Neither
the Indenture Trustee nor any other Successor Master Servicer shall be deemed
to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Master Servicer to deliver or
provide, or any delay of the Master Servicer in delivering or providing, any
cash, information, documents or records to it.
Section
6.05. Waiver
of Defaults.
The
Holders of not less than 51% of the aggregate Note Balance of the Notes may,
on
behalf of all Noteholders, waive any events permitting removal of the Servicer
as servicer or of the Master Servicer as master servicer pursuant to this
Article VI, provided,
however,
that
the Holders of not less than 51% of the aggregate Note Balance of the Notes
may
not waive a default in making a required payment on a Note without the consent
of the Holder of such Note. Upon any waiver of a past default, such default
shall cease to exist, and any Servicer Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereto except to the extent expressly so waived. Notice of any
such
waiver shall be given by the Securities Administrator to the Rating
Agencies.
Section
6.06. Notification
to Noteholders.
Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VI or Section 5.04, the Securities Administrator shall give prompt
written notice thereof to the Noteholders at their respective addresses
appearing in the Note Register and to each Rating Agency.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01. Amendment.
(a) This
Agreement may be amended from time to time by the Issuer, the Servicer, the
Master Servicer, the Securities Administrator and the Indenture Trustee subject,
in the case of any amendment or modification which affects any right, benefit,
duty or obligation of the Custodian, to the consent of the Custodian, in each
case without the consent of any of the Noteholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provisions herein, (iii) to add to
the
duties of the Servicer or of the Master Servicer, (iv) to add any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or (v)
to
provide for gross deposits to the Collection Account by the Servicer;
provided,
however,
that as
evidenced by an Opinion of Counsel (at the expense of the requesting party)
in
each case such action shall not adversely affect in any material respect the
interest of any Noteholder; and provided,
further,
that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Noteholders and no Opinion of Counsel to that effect shall
be required if the Person requesting the amendment obtains a letter from each
Rating Agency stating that the amendment would not result in the downgrading
or
withdrawal of the respective ratings then assigned to the Notes.
(b) This
Agreement also may be amended from time to time by the Issuer, the Servicer,
the
Master Servicer, the Securities Administrator and the Indenture Trustee,
subject, in the case of any amendment or modification which affects any right,
benefit, duty or obligation of the Custodian, to the consent of the Custodian,
with the consent of the Holders of not less than 51% of the Note Balance of
the
Class of Notes affected by such amendment (or in the case of an amendment which
affects all classes, the consent of the Holders of not less than 51% of the
Note
Balance of the Notes), for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments on the Notes which are required to be made on any Note without
the
consent of the Holder of such Note or (ii) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders
of
all Notes then outstanding.
(c) Prior
to
the execution of any such amendment, the Securities Administrator shall furnish
written notification of the substance of such amendment to each Rating Agency.
In addition, promptly after the execution of any such amendment made with the
consent of the Noteholders, the Securities Administrator shall furnish written
notification of the substance of such amendment to each Noteholder.
(d) It
shall
not be necessary for the consent of Noteholders under this Section 7.01 to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Noteholders shall be subject to such reasonable requirements as
the
Securities Administrator may prescribe.
Notwithstanding
the permissive language in Section 7.01(a) and 7.01(b), upon satisfaction of
the
conditions in Section 7.01(a) or 7.01(b) as applicable, the Indenture Trustee
and the Securities Administrator shall execute and deliver the applicable
amendment; provided,
however,
that
the Indenture Trustee and the Securities Administrator shall not be required
to
execute any amendment which materially and adversely affects the rights, duties
or immunities of the Indenture Trustee or of the Securities Administrator
hereunder. Prior to the execution of any amendment to this Agreement, each
of
the Indenture Trustee and the Securities Administrator shall be entitled to
receive and rely upon a Opinion of Counsel addressed to it stating that the
execution of such amendment is authorized or permitted by this
Agreement.
Section
7.02. GOVERNING
LAW.
THIS
SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
7.03. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if and when delivered to:
(a) in
the
case of the Servicer:
Ocwen
Loan Servicing, LLC
0000
Xxxxxxxxxxx Xxxx
Xxxxx
000
XxxxxxXxxx Xxxx
Xxxx
Xxxx
Xxxxx, XX 00000
Attention:
Secretary
(b) in
the
case of the Master Servicer:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Renaissance HEL Trust 2006-2
(c) in
the
case of Rating Agencies:
Xxxxx’x
Investors Service, Inc.
4th
Floor
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgage Monitoring Unit
Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 10041-0003
Attention:
RMBS Surveillance
(d) in
the
case of the Owner Trustee, the Corporate Trust Office:
Wilmington
Trust Company
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
(e) in
the
case of the Issuer, to Renaissance Home Equity Loan Trust 2006-2:
c/o
Renaissance Mortgage Acceptance Corp.
0000
Xxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Chief Financial Officer
(f) in
the
case of the Indenture Trustee or the Securities Administrator, to the respective
Corporate Trust Office;
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid,
at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered
or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation
and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section
7.04. Assignment.
Notwithstanding anything to the contrary contained herein, except as provided
in
Sections 4.16, 5.02, 5.04 and 5.05 (or 3.01), this Agreement may not be assigned
by the Master Servicer or the Servicer without the prior written consent of
the
Holders of not less than 66% of the aggregate Note Balance of the Notes.
Notwithstanding the foregoing, the Servicer and the Master Servicer may assign
its rights to reimbursement for Monthly Advances, Servicing Advances and
Nonrecoverable Advances, as applicable, without Noteholder consent.
Section
7.05. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Servicing
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Servicing Agreement and
shall
in no way affect the validity or enforceability of the other provisions of
this
Servicing Agreement or of the Notes or the rights of the Noteholders
thereof.
Section
7.06. Third-Party
Beneficiaries.
This
Servicing Agreement will inure to the benefit of and be binding upon the parties
hereto, the Noteholders, the Owner Trustee, the Indenture Trustee and their
respective successors and permitted assigns. Except as otherwise provided in
this Servicing Agreement, no other Person will have any right or obligation
hereunder. The Indenture Trustee shall have the right to exercise all rights
of
the Issuer under this Servicing Agreement.
Section
7.07. Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
7.08. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
7.09. Termination.
The
respective obligations and responsibilities of the Master Servicer and the
Issuer created hereby shall terminate upon the satisfaction and discharge of
the
Indenture pursuant to Section 4.10 thereof.
Section
7.10. No
Petition.
The
Master Servicer, by entering into this Servicing Agreement, hereby covenants
and
agrees that it will not at any time institute against the Issuer, or join in
any
institution against the Issuer, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations of the Issuer. This section shall survive the termination of this
Servicing Agreement by one year.
Section
7.11. No
Recourse.
The
Master Servicer acknowledges that no recourse may be had against the Issuer,
except as may be expressly set forth in this Servicing Agreement.
Section
7.12. Indenture
Trustee Rights.
The
Indenture Trustee and the Securities Administrator shall each be entitled to
the
same rights, protections, indemnities and immunities afforded to it under the
Indenture as if specifically set forth herein.
Section
7.13. Waiver
of Jury Trial.
EACH
PARTY HERBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
Section
7.14. No
Recourse to Owner Trustee.
It
is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of Renaissance Home Equity Loan Trust
2006-2, in the exercise of the powers and authority conferred and vested in
it,
(b) each of the representations, undertakings and agreements herein made on
the
part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended
for the purpose for binding only the Issuer, (c) nothing herein contained shall
be construed as creating any liability of Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any Person claiming by, through or under the parties hereto and (d)
under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other related
documents.
| Section 7.15. |
Intention
of the Parties and Interpretation.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 3.09,
3.10 and 3.13 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB promulgated by the SEC under the Exchange
Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to time
and subject to clarification and interpretive advice as may be issued by the
staff of the Commission from time to time. Therefore, each of the parties hereto
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply, to the extent practicable from a timing and information
systems perspective and to the extent that the Depositor will pay any increased
costs of the Indenture Trustee, Master Servicer and Securities Administrator
caused by such request, with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good
faith
is necessary to comply with the provisions of Regulation AB, and (d) no party
shall object to any amendment of this Agreement that shall be required to effect
any such changes in the parties’ obligations as are necessary to accommodate
evolving interpretations of the provisions of Regulation AB.
IN
WITNESS WHEREOF, the Master Servicer, the Servicer, the Issuer, the Indenture
Trustee and the Securities Administrator have caused this Servicing Agreement
to
be duly executed by their respective officers or representatives all as of
the
day and year first above written.
|
XXXXX
FARGO BANK, N.A.,
as
Master Servicer and Securities Administrator
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: |
Xxxxxx Xxxxxx |
|
| Title: | Vice President | |
|
OCWEN
LOAN SERVICING, LLC,
as
Servicer
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxx |
|
| Title: | Authorized Representative | |
|
RENAISSANCE
HOME EQUITY LOAN TRUST 2006-2, as Issuer
|
||
| |
|
|
| By: | Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx |
|
| Title: | Financial Services Officer | |
|
HSBC
BANK USA, NATIONAL ASSOCIATION,
as
Indenture Trustee
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
| Name: |
Xxxxx Xxxxx |
|
| Title: | Assistant Vice President | |
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
See
Exhibit B to Indenture
EXHIBIT
B
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
Xxxxx
Fargo Bank, N.A.
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attn:
Mortgage Document Custody
| Re: | Custodial Agreement dated as of June 1, 2006 among Renaissance REIT Investment Corp., as Seller, Renaissance Mortgage Acceptance Corp., as Depositor, Ocwen Loan Servicing, LLC, as Servicer, HSBC Bank USA, National Association, as Indenture Trustee and Xxxxx Fargo Bank, N.A., as Custodian for Renaissance Home Equity Loan Trust 2006-2, Home Equity Loan Asset-Backed Notes, Series 2006-2 |
In
connection with the administration of the Mortgage Loans held by you, as
Custodian, pursuant to the above-captioned Custodial Agreement, we request
the
release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage
Loan described below, for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents
(check
one):
1. Mortgage
Paid in Full
_
2. Foreclosure
3. Substitution
4. Other
Liquidation
5. Nonliquidation
Reason:______________________
By:__________________________
(authorized
signer)
[Servicer]
[Master Servicer]:
______________________
Address:_______________________
Date:
______________________
Custodian
Xxxxx
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
__________________________
______________________
Signature
Date
Documents
returned to Custodian:
__________________________
_____________________
Custodian
Date
EXHIBIT
C-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH
FORM
10-K
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K, and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K
[identify issuing entity] (i.e., the name of the specific deal to which this
certification relates rather than just the name of the Depositor)] (the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do 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 with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. I
am
responsible for reviewing the activities performed by the servicer and based
on
my knowledge and the compliance review conducted in preparing the servicer
compliance statement required in this report under Item 1123 of Regulation
AB,
and except as disclosed in the Exchange Act periodic reports, the servicer
has
fulfilled its obligations under the servicing agreement in all material
respects; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated party: Ocwen Loan Servicing, LLC.
XXXXX
FARGO BANK, N.A.
By:____________________________________
Name:
Title:
Date:
EXHIBIT
C-2
Reserved
EXHIBIT
C-3
FORM
OF
CERTIFICATION TO BE
PROVIDED
TO THE MASTER SERVICER BY THE SERVICER
Re:
Renaissance
Home Equity Loan Trust 2006-2 (the “Trust”)
I,
[identify the certifying individual], a [title] of Ocwen Loan Servicing, LLC,
as
Servicer of the Trust, hereby certify to Xxxxx Fargo Bank, N.A. (the “Master
Servicer”), and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
()
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the Depositor pursuant to the Agreement (collectively, the “Company
Servicing Information”);
()
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
()
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the
Depositor;
() I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
()
The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to the Depositor. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor.
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: ___________________
OCWEN
LOAN SERVICING, LLC,
as
Servicer
By:______________________________________
Name:
Title:
EXHIBIT
D
CALCULATION
OF REALIZED LOSS/GAIN FORM 332
XXXXX
FARGO BANK, N.A. - Calculation of Realized Loss/Gain Form
332
Prepared
by: __________________ Date:
_______________
Phone:
______________________
Email Address:_____________________
|
Servicer
Loan No.
|
|
Servicer
Name
|
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
$ |
(1)
|
|||
|
(2)
|
Interest
accrued at Net Rate
|
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
|
(4)
|
||||
|
(5)
|
Taxes
(see page 2)
|
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
(11)
|
|||||
|
(12)
|
Other
(itemize)
|
|
(12)
|
||||
|
Cash
for Keys
|
|
(12)
|
|||||
|
HOA/Condo
Fees
|
|
(12)
|
|||||
|
|
|
(12)
|
|||||
|
Total
Expenses
|
$ |
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
(15)
|
|||||
|
(16)
|
Rental
Receipts
|
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
|
(18a) | ||||
|
HUD
Part A
|
|||||||
|
HUD
Part B
|
(18b) | ||||||
|
(19)
|
Pool
Insurance Proceeds
|
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
|
(21)
|
||||
|
|
|
|
(21)
|
||||
|
Total
Credits
|
$
|
(22)
|
|||||
|
Total
Realized Loss (or Amount of Gain)
|
|
|
$
|
(23)
|
|||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
XXXXX
FARGO BANK, N.A.
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
(b) The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2.
The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12.
Complete
as applicable. Required documentation:
*
For
interest advances - an amortization schedule (evidencing calculation of interest
advances)
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history (to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
(c)
Credits:
14-21.
Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, copy of attorney letter of Foreclosure proceeds.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23.
The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
EXHIBIT
E
STANDARD
FILE LAYOUT—SCHEDULED/SCHEDULED
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LOAN_NBR
|
Loan
Number assigned by investor
|
Text
up to 10 digits
|
|
|
SERVICER
LOAN_NBR
|
Servicer
Loan Number
|
Text
up to 10 digits
|
|
|
BORROWER_NAME
|
Mortgagor
name assigned to Note
|
Max
length of 30
|
|
|
SCHED_PMT_AMT
|
P&I
constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NOTE_INT_RATE
|
Gross
Interest Rate
|
4
|
Max
length of 6
|
|
NET_RATE
|
Gross
Interest Rate less the Service Fee Rate
|
4
|
Max
length of 6
|
|
SERV_FEE_RATE
|
Service
Fee Rate
|
4
|
Max
length of 6
|
|
NEW_PAY_AMT
|
ARM
loan's forecasted P&I constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEW_LOAN_RATE
|
ARM
loan's forecasted Gross Interest Rate
|
4
|
Max
length of 6
|
|
ARM_INDEX_RATE
|
ARM
loan's index Rate used
|
4
|
Max
length of 6
|
|
ACTL_BEG_BAL
|
Beginning
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
ACTL_END_BAL
|
Ending
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEXT_DUE_DATE
|
Borrower's
next due date
|
MM/DD/YYYY
|
|
|
CURT_AMT_1
|
Curtailment
Amount
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_1
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT_1
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_2
|
Curtailment
Amount 2
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_2
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT2
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_3
|
Curtailment
Amount 3
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_3
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_AMT3
|
Curtailment
Interest, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_BEG_BAL
|
Beginning
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_END_BAL
|
Ending
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_PRIN_AMT
|
Scheduled
Principal portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_NET_INT
|
Scheduled
Net Interest (less Service Fee) portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIQ_AMT
|
Liquidation
Principal Amt to bring balance to zero
|
2
|
No
commas(,) or dollar signs ($)
|
|
PIF_DATE
|
Liquidation
Date
|
MM/DD/YYYY
|
|
|
ACTION_CODE
|
Either
60 for liquidation or 65 for Repurchase
|
Max
length of 2
|
|
|
PRIN_ADJ_AMT
|
Principal
Adjustments made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
INT_ADJ_AMT
|
Interest
Adjustment made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
PREPAYMENT
PENALTY AMT
|
Prepayment
penalty amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SOLDIER_SAILOR
ADJ AMT
|
Soldier
and Sailor Adjustment amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
NON
ADV LOAN AMT
|
Non
Recoverable Loan Amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
EXHIBIT
F
STANDARD
FILE LAYOUT—DELINQUENCY REPORTING
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-Charge
Off
|
| · |
DIL-Deed-in-Lieu
|
| · |
FFA-Formal
Forbearance Agreement
|
| · |
MOD-Loan
Modification
|
| · |
PRE-Pre-Sale
|
| · |
SS-Short
Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
EXHIBIT
G
FORM
OF
MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT
See
Exhibit 99.1
EXHIBIT
H
LIST
OF
APPRAISAL FIRMS
| 1. |
ATM
Corporation
|
000
Xxxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
(000)
000-0000
| 2. |
Lender’s
Service, Inc.
|
000
Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
(000)
000-0000
| 3. |
Mortgage
Information Services
|
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxx 00000
(000)
000-0000
EXHIBIT
I
ANNUAL
STATEMENT OF COMPLIANCE PURSUANT TO SECTION 3.09
Renaissance
Home Equity Loan Trust 2006-2
Home
Equity Loan Asset-Backed Notes, Series 2006-2
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of Xxxxx Fargo Bank, N.A. (the “Master Servicer”),
and further certify as follows:
1. This
certification is being made pursuant to the terms of the Servicing Agreement,
dated as of June 1, 2006 (the “Agreement”), among Xxxxx Fargo Bank, N.A. as
Master Servicer and Securities Administrator, OCWEN Loan Servicing, LLC as
Servicer, Renaissance Home Equity Loan Trust 2006-2 as Issuer and HSBC Bank
USA,
National Association as Indenture Trustee.
2. The
undersigned officer of the Servicer hereby certifies 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 officers’ supervision and (ii) to
the best of such officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status of cure provisions thereof.
Capitalized
terms not otherwise defined herein have the meanings set forth in the
Agreements.
Dated:
_____________, 200__
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
By:
_____________________________
Name:
Title:
I,
_________________________, a (an) __________________ of the Master Servicer,
hereby certify that _________________ is a duly elected, qualified, and acting
_______________________ of the Master Servicer and that the signature appearing
above is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
By:
______________________________
Name:
Title:
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Master Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “Securities Administrator” functions,
while in another transaction, the Securities Administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key:
X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Custodian
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
[X]
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
EXHIBIT
K
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
VIA FAX TO [XXX-XXX-XXXX] AND VIA EMAIL TO [ ] AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW**
Xxxxx
Fargo Bank, N.A., as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Corporate Trust Services- [DEAL NAME]—SEC REPORT PROCESSING
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Renaissance
Mortgage Acceptance Corp.
0000
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Servicing Agreement, dated as of June 1,
2006, among Xxxxx Fargo Bank, N.A. as Master Servicer and Securities
Administrator, Ocwen Loan Servicing, LLC as Servicer, Renaissance Home Equity
Loan Trust 2006-2 as Issuer and HSBC Bank USA, National Association as Indenture
Trustee., the undersigned, as [ ], hereby notifies you that certain events
have
come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of
any Attachments hereto to be included in the Additional Form [10-D][10-K][8-K]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY],
as
[role]
By:
____________________________
Name:
Title:
EXHIBIT
L
FORM
10-D
REPORTING RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Securities
Administrator pursuant to Section 3.13(a)(iv) of the Servicing Agreement. If
the
Securities Administrator is indicated below as to any item, then the Securities
administrator is primarily responsible for obtaining that
information.
Under
Item 1 of Form 10-D: a) items marked “7.05 statement” are required to be
included in the periodic Payment Date statement under Section 7.05 of the
Indenture, provided by the Securities administrator based on information
received from the Master Servicer; and b) items marked “Form 10-D report” are
required to be in the Form 10-D report but not the 7.05 statement, provided
by
the party indicated. Information under all other Items of Form 10-D is to be
included in the Form 10-D report.
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the monthly statement
|
Master
Servicer
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the monthly
statement
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Servicing Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor,
if applicable
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor,
if applicable
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Securities
Administrator
|
|
▪
Determining current significance percentage
|
Securities
Administrator
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor,
if applicable
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
EXHIBIT
M
FORM
8-K
REPORTING
RESPONSIBILITY
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
N/A
|
|
▪
Credit Enhancer (10% or more)
|
Depositor,
if applicable
|
|
▪
Derivative Counterparty
|
Depositor,
if applicable
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Servicing Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
EXHIBIT
N
FORM
10-K
REPORTING
RESPONSIBILITY
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ADDITIONAL
FORM 10-K DISCLOSURE
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|
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Item
on Form 10-K
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Party
Responsible
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Item
1B: Unresolved Staff Comments
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Depositor
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Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
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Any
party responsible for disclosure items on Form 8-K
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Item
15: Exhibits, Financial Statement Schedules
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Securities
Administrator
Depositor
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Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
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Significant
Obligor Financial Information*
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N/A
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*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
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Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
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▪
Determining applicable disclosure threshold
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Depositor,
if applicable
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▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
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Depositor,
if applicable
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*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
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Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
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▪
Determining current maximum probable exposure
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Securities
Administrator
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▪
Determining current significance percentage
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Securities
Administrator
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▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
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Depositor,
if applicable
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*This
information need only be reported on the Form 10-K if updated information
is required pursuant to the Item.
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Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding known to be contemplated by governmental
authorities:
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▪
Issuing Entity (Trust Fund)
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Trustee,
Master Servicer, Securities Administrator and Depositor
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▪
Sponsor (Seller)
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Seller
(if a party to the Servicing Agreement) or Depositor
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▪
Depositor
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Depositor
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▪
Trustee
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Trustee
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▪
Securities Administrator
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Securities
Administrator
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▪
Master Servicer
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Master
Servicer
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▪
Custodian
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Custodian
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▪
1110(b) Originator
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Depositor
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▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
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Servicer
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▪
Any other party contemplated by 1100(d)(1)
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Depositor
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Reg
AB Item 1119: Affiliations and Relationships
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Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
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Depositor
as to (a)
Sponsor/Seller
as to (a)
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▪
Master Servicer
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Master
Servicer
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▪
Securities Administrator
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Securities
Administrator
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▪
Trustee
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Trustee
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▪
Any other 1108(a)(3) servicer
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Servicer
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▪
Any 1110 Originator
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Depositor/Sponsor
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▪
Any 1112(b) Significant Obligor
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N/A
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▪
Any 1114 Credit Enhancement Provider
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Depositor/Sponsor,
if applicable
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▪
Any 1115 Derivate Counterparty Provider
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Depositor/Sponsor,
if applicable
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▪
Any other 1101(d)(1) material party
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Depositor/Sponsor
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Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
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Depositor
as to (a)
Sponsor/Seller
as to (a)
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▪
Master Servicer
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Master
Servicer
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▪
Securities Administrator
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Securities
Administrator
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▪
Trustee
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Depositor/Sponsor
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▪
Any other 1108(a)(3) servicer
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Servicer
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▪
Any 1110 Originator
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Depositor/Sponsor
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▪
Any 1112(b) Significant Obligor
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N/A
|
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▪
Any 1114 Credit Enhancement Provider
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Depositor/Sponsor,
if applicable
|
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▪
Any 1115 Derivate Counterparty Provider
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Depositor/Sponsor,
if applicable
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▪
Any other 1101(d)(1) material party
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Depositor/Sponsor
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Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
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Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
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▪
Trustee
|
Depositor/Sponsor
|
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▪
Any other 1108(a)(3) servicer
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Servicer
|
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▪
Any 1110 Originator
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Depositor/Sponsor
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▪
Any 1112(b) Significant Obligor
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N/A
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▪
Any 1114 Credit Enhancement Provider
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Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor,
if applicable
|
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▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor,
if applicable
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