LOAN SERVICING AGREEMENT Dated and effective as of February 1, 2004 RWT HOLDINGS, INC. (Owner) and GMAC MORTGAGE CORPORATION (Servicer)
Exhibit
10.6
Dated
and effective as of February 1, 2004
RWT
HOLDINGS, INC.
(Owner)
and
GMAC
MORTGAGE CORPORATION
(Servicer)
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
1
|
|
Section
1.01
|
Definitions
|
1
|
| ARTICLE II POSSESSION OF MORTGAGE LOAN SERVICING FILES |
10
|
|
|
Section
2.01
|
Servicing
of Mortgage Loans.
|
10
|
|
Section
2.02
|
Conveyance
of Mortgage Loan Servicing Files; Possession of Mortgage Loan
Servicing Files.
|
10
|
|
Section
2.03
|
Books
and Records.
|
10
|
|
Section
2.04
|
Custodial
Agreement: Delivery of Documents.
|
10
|
|
Section
2.05
|
Tax
Service/Flood Service.
|
11
|
| ARTICLE III REPRESENTATIONS AND WARRANTIES |
11
|
|
|
SECTION
3.01
|
GENERAL
REPRESENTATIONS AND WARRANTIES OF THE
|
|
|
SERVICER
AND OWNER.
|
11
|
|
|
Section
3.02
|
Representations,
Warranties and Covenants of Owner.
|
12
|
|
Section
3.03
|
Survival.
|
13
|
| ARTICLE IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS |
13
|
|
|
Section
4.01
|
Standards
of Servicer.
|
13
|
|
Section
4.02
|
Liquidation
of Mortgage Loans; Servicing Advances and
Foreclosure.
|
15
|
|
Section
4.03
|
Collection
of Mortgage Loan Payments.
|
16
|
|
Section
4.04
|
Establishment
of Custodial Account; Deposits in Custodial
Account.
|
16
|
|
Section
4.05
|
Withdrawals
From the Custodial Account.
|
18
|
|
Section
4.06
|
Establishment
of Escrow Account; Deposits in Escrow Account.
|
19
|
|
Section
4.07
|
Withdrawals
From Escrow Account.
|
19
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges.
|
20
|
i
|
Section
4.09
|
Transfer
of Accounts.
|
20
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
20
|
|
Section
4.11
|
Maintenance
of Blanket Insurance Policy.
|
21
|
|
Section
4.12
|
Maintenance
of Mortgage Impairment Insurance Policy.
|
21
|
|
Section
4.13
|
Fidelity
Bond; Errors and Omissions Insurance.
|
22
|
|
Section
4.14
|
Title,
Management and Disposition of REO Property.
|
22
|
|
Section
4.15
|
Transfer
Notices.
|
24
|
|
Section
4.16
|
Restoration
of Mortgaged Property.
|
25
|
|
Section
4.17
|
Maintenance
of PMI Policy; Claims.
|
25
|
|
Section
4.18
|
Privacy.
|
26
|
|
Section
4.19
|
Compliance
with REMIC Provisions.
|
27
|
| ARTICLE V PAYMENTS TO THE OWNER |
27
|
|
|
Section
5.01
|
Distributions.
|
27
|
|
Section
5.02
|
Statements
to the Owner.
|
28
|
|
Section
5.03
|
P&I
Advances by the Servicer.
|
28
|
| ARTICLE VI GENERAL SERVICING PROCEDURE |
29
|
|
|
Section
6.01
|
Assumption
Agreements.
|
29
|
|
Section
6.02
|
Release
of Mortgage Files; Wrongful Satisfaction of
Mortgages.
|
29
|
|
Section
6.03
|
Servicing
Compensation.
|
29
|
|
Section
6.04
|
Annual
Statement as to Compliance.
|
30
|
|
Section
6.05
|
Annual
Independent Public Accountants’ Servicing Report.
|
30
|
|
Section
6.06
|
Owner’s
Right to Examine Servicer Records.
|
30
|
|
Section
6.07
|
Rate
Adjustment.
|
30
|
|
Section
6.08
|
Maintenance
of Licenses and Ratings.
|
31
|
ii
|
Section
6.09
|
Quality
Control.
|
31
|
|
Section
6.10
|
Compliance
and Performance Reviews.
|
31
|
|
Section
6.11
|
Access
to Documents and Employees.
|
32
|
|
Section
6.12
|
Notices.
|
32
|
|
Section
6.13
|
Contingency
Plans.
|
32
|
| ARTICLE VII REPORTS TO BE PREPARED BY SERVICER |
32
|
|
|
Section
7.01
|
Servicer
Shall Provide Access and Information as Reasonably
Required.
|
32
|
|
Section
7.02
|
Financial
Statements.
|
33
|
| ARTICLE VIII THE SERVICER |
33
|
|
|
Section
8.01
|
Indemnification;
Third Party Claims.
|
33
|
|
Section
8.02
|
Limitation
on Liability
|
35
|
|
Section
8.03
|
Merger
or Consolidation of the Servicer.
|
35
|
| ARTICLE IX DEFAULT |
36
|
|
|
Section
9.01
|
Events
of Default.
|
36
|
| ARTICLE X TERMINATION; RECONSTITUTION |
37
|
|
|
Section
10.01
|
(
Reserved )
|
37
|
|
Section
10.02
|
Termination
Without Cause
|
37
|
|
Section
10.03
|
Removal
of Mortgage Loans From Inclusion Under This
Agreement
|
38
|
| ARTICLE XI MISCELLANEOUS PROVISIONS |
41
|
|
|
Section
11.01
|
Successor
to the Servicer.
|
41
|
|
Section
11.02
|
No
Waiver.
|
41
|
|
Section
11.03
|
Amendment.
|
42
|
|
Section
11.04
|
No
Solicitations.
|
42
|
|
Section
11.05
|
Duration
of Agreement.
|
42
|
iii
|
Section
11.06
|
Governing
Law.
|
42
|
|
Section
11.07
|
Notices.
|
43
|
|
Section
11.08
|
Severability
of Provisions.
|
43
|
|
Section
11.09
|
No
Partnership.
|
43
|
|
Section
11.10
|
Counterparts.
|
43
|
|
Section
11.11
|
Successors
and Assigns.
|
43
|
|
Section
11.12
|
Time
of Payment.
|
44
|
|
Section
11.13
|
General
Interpretive Principles.
|
44
|
|
Section
11.14
|
Entire
Agreement.
|
44
|
|
Force
Majeure.
|
45
|
EXHIBITS
|
Exhibit
A
|
Eligibility
Criteria for Residential Mortgage
Loans
|
|
Exhibit
B
|
Reserved
|
|
Exhibit
C
|
Mortgage
File and Mortgage Loan Servicing File
Contents
|
|
Exhibit
D
|
Transfer
Instructions
|
|
Exhibit
E
|
Form
of Limited Corporate Resolution
|
|
Exhibit
F
|
Custodial
Account Letter Agreement
|
|
Exhibit
G
|
Escrow
Account Letter Agreement
|
|
Exhibit
H
|
Form
of Remittance Schedule
|
|
Exhibit
I
|
Servicer’s
Responsibilities Upon Transfer of
Servicing
|
|
Exhibit
J
|
List
of Reports
|
|
Exhibit
K
|
Form
of Custodial Agreement
|
| Exhibit L | Reconstitution Form Opinion |
iv
THIS
LOAN SERVICING AGREEMENT
dated as
of February 1st,
2004
(the “Agreement”) by and between RWT Holdings, Inc. and/or its assigns
(“Owner”), a Delaware corporation with its principal office located at Xxx
Xxxxxxxxx Xxxxx, #000 Xxxx Xxxxxx, Xxxxxxxxxx, 00000, and GMAC Mortgage
Corporation, a Pennsylvania corporation with its principal office located at
000
Xxxxxx Xxxx, Xxxxxxx, XX 00000-0000 (“Servicer”).
Recitals
A. Owner
desires to retain Servicer from time to time to service certain residential
mortgage loans that Owner may make or acquire; and
B. Owner
and
Servicer desire to establish the terms and conditions on which Servicer shall
service mortgage loans on behalf of Owner.
NOW,
THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
“Agreement”:
This Loan Servicing Agreement, including all exhibits hereto, and all amendments
hereof and supplements hereto.
“Ancillary
Income”: All income derived from the Mortgage Loans other than servicing fees
and prepayment fees, including without limitation late charges and other
incidental fees and fees, commissions or expense reimbursements relating to
the
placement of insurance, and such other income defined as Ancillary Income in
this Agreement.
“Applicable
Requirements”: As of the time of reference, with respect to the Mortgage Loans,
REO Property and the servicing of the Mortgage Loans, all of the following:
(i)
all contractual obligations of Owner under the Mortgage Loan, for which Owner
or, by virtue of this Agreement, Servicer is responsible for or at any time
was
or hereafter will be responsible; (ii) all applicable federal, state and local
legal and regulatory requirements (including, without limitation, statutes,
rules, regulations and ordinances and including the Privacy Requirements)
binding upon Owner or Servicer; (iii) all other applicable requirements and
guidelines of each governmental agency, board, commission, instrumentality
and
other governmental body or officer having jurisdiction; (iv) all other
applicable judicial and administrative judgments, orders, stipulations, awards,
writs and injunctions; (v), the applicable provisions of the Xxxxxx Mae
Servicing Guide for whole loan servicing that would apply if Xxxxxx Xxx were
the
Investor for such Mortgage Loans, to the extent not otherwise inconsistent
with
this Agreement; and (vi) Customary Servicing Procedures.
1
“Assignment
of Mortgage”: An assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form (but not recorded) that, when properly completed
and recorded, is sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect of record the sale of the
Mortgage Loan to the Owner.
“Assumed
Principal Balance”: As to each Mortgage Loan as of any date of determination,
(i) the principal balance of the Mortgage Loan outstanding as of the
Determination Date after application of payments due on or before the
Determination Date, whether or not received, minus (ii) all amounts previously
distributed to the Owner with respect to the Mortgage Loan pursuant to Section
5.01 and representing payments or other recoveries of principal.
“Business
Day”: Any day other than (i) a Saturday or Sunday, (ii) a day on which banking
or savings and loan institutions in the Commonwealth of Pennsylvania or the
States of California, Iowa or Connecticut are authorized or obligated by law
or
executive order to be closed, or (iii) a day that is a company holiday at the
location of the main offices of either Owner or Servicer.
“Condemnation
Proceeds”: All awards or settlements in respect of a taking of an entire
Mortgaged Property by exercise of the power of eminent domain or
condemnation.
“Custodial
Account”: The separate account or accounts created and maintained pursuant to
Section 4.04.
“Custodial
Agreement”: The agreement governing the retention of the originals of each
Mortgage Note, Mortgage, Assignment of Mortgage and other Mortgage Loan
Documents, a form of which is annexed hereto as Exhibit
K.
“Custodian”:
The custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement as
provided therein.
“Customer
Information”: Any personally identifiable information in any form (written
electronic or otherwise) relating to a Mortgagor, including, but not limited
to:
a Mortgagor’s name, address, telephone number, Mortgage Loan number, Mortgage
Loan payment history, delinquency status, insurance carrier or payment
information, tax amount or payment information; the fact that the Mortgagor
has
a relationship with the servicer of such Mortgagor’s Mortgage Loan; and any
other non-public personally identifiable information.
“Customary
Servicing Procedures”: Those mortgage servicing practices of mortgage lending
institutions that service mortgage loans of the same type as such Mortgage
Loan
in the jurisdiction where the related Mortgage Property is located, exercising
the same care in performing those practices that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its
own
account (including compliance with all applicable federal, state and local
laws).
2
“Cutoff
Date”: The last Business Day of the month.
“Determination
Date”: The 15th
day (or
if such last day is not a Business Day, the Business Day immediately preceding
such 15th day) of the month immediately preceding the related Remittance
Date.
“Due
Date”: The day of the month on which each Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
“Due
Period”: With respect to each Remittance Date, the period beginning on the
second day of the month preceding the month of the Remittance Date, and ending
on the first day of the month of the Remittance Date.
“Effective
Date”: The date that Servicer physically assumes in accordance with the Transfer
Instructions.
“Eligibility
Criteria”: The eligibility criteria for residential mortgage loans to be
delivered by Owner after the initial Effective Date to be serviced by Servicer
under this Agreement, as specified in Exhibit
A hereto,
as the same may be amended from time to time with the mutual consent of both
parties.
“Eligible
Depository Institution”: An account or accounts maintained with a depository
institution which is acceptable to Xxxxxx Xxx for establishment of custodial
accounts.
“Eligible
Investments”: Any one or more of the following obligations or
securities:
(i) obligations
of or guaranteed as to principal and interest by the (a) United States, Xxxxxxx
Mac, Xxxxxx Xxx or any agency or instrumentality of the United States when
such
obligations are backed by the full faith and credit of the United States;
provided, that such obligations of Xxxxxxx Mac or Xxxxxx Xxx shall be limited
to
senior debt obligations and mortgage participation certificates except that
investments in mortgage-backed or mortgage participation securities with yields
evidencing extreme sensitivity to the rate of principal payments on the
underlying mortgages shall not constitute Eligible Investments
hereunder;
(ii)
repurchase agreements (which must be fully collateralized) on
obligations specified in clause (i) maturing not more than one month from the
date of acquisition thereof;
(iii) federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than 90
days
and, in the case of bankers’ acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust
company;
3
(iv) commercial
paper (having original maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any state thereof which
are
rated at least A-1 or P-1 by S & P Corporation (“S & P”) and Xxxxx’x
Investor Services, Inc. (“Moody’s”), respectively;
(v) obligations
of major foreign commercial banks, limited to Eurodollar deposits, time
deposits, certificate of deposits, bankers acceptances, Yankee Bankers
acceptances and Yankee certificate of deposits;
(vi) obligations
of major foreign corporations limited to commercial paper, auction rate
preferred stock, medium term notes, master notes and loan
participations;
(vii) money
market funds comprised of securities described in the aforementioned clauses
(i-iv) and having a stated policy of maintaining a set net asset value per
share
(a “Money Market Fund”). All Money Market Funds will conform to Rule 2a-7 of the
Investment Company Act of 1940;
(viii) GMAC
Variable Denomination Demand Note Program which constitutes unsecured, senior
debt obligations of General Motors Acceptance Corporation as outlined in the
Prospectus dated March 31, 1995 (the “Demand Note Program”). Investments in the
Demand Note Program are subject to:
(a) GMAC’s
short term unsecured debt must be rated (i) at least A-1 by S & P and at
least P-2 by Moody’s or (ii) at least A-2 by S & P and at least P-1 by
Moody’s; and
(b) GMAC’s
long term unsecured debt must be rated (i) not less than A- by S & P and
(ii) not less than A3 by Moody’s;
provided,
however, that no instrument shall be an Eligible Investment if it represents,
either (1) the right to receive only interest payments with respect to the
underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
“Escrow
Account”: The separate account or accounts created and maintained pursuant to
Section 4.06.
“Escrow
Payments”: The amounts constituting taxes, assessments, mortgage insurance
premiums, fire and hazard insurance premiums and other payments required to
be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage Loan.
“Event
of
Default”: Any one of the conditions or circumstances enumerated in Section 9.01.
“Xxxxxx
Xxx”: The Federal National Mortgage Association or any successor
organization.
4
“FDIC”:
The Federal Deposit Insurance Corporation or any successor organization.
“Fidelity
Bond”: A fidelity bond required to be maintained by the Servicer pursuant to
Section 4.13.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation or any successor
organization.
“GMAC”:
GMAC Mortgage Corporation, a Pennsylvania corporation, its successors and
assigns.
“High
Cost
Loan”: A residential mortgage loan that is subject to the anti-predatory
prohibitions of state or local laws and regulations by virtue of the loan’s high
interest rate or total points and fees.
“HOEPA”:
The Home Ownership Equity Protection Act.
“HUD”:
The Department of Housing and Urban Development or any successor organization.
“Index”:
With respect to any Adjustable Rate Mortgage Loan, the index set forth in the
applicable Mortgage Note which is added to the gross margin to determine the
Mortgage Interest Rate on each interest adjustment date.
“Insurance
Proceeds”: Proceeds of any Primary Insurance Policy, title policy, hazard policy
or other insurance policy covering a Mortgage Loan, if any, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with Customary Servicing
Procedures or in accordance with the terms of the related Mortgage Loan or
applicable law.
“Investor”:
An assign (including any trustee) of RWT Holdings, Inc.’s legal interest in a
Mortgage Loan.
“Liquidation
Proceeds”: Cash, other than Insurance Proceeds, Condemnation Proceeds or REO
Disposition Proceeds, received in connection with the liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of the Mortgage Loan,
trustee’s sale, foreclosure sale or otherwise.
“Loss
Mitigation Activity”: To the extent not ordinary to the servicing function, an
initiative taken by the Servicer (sometimes on cooperation with the Mortgagor),
with the prior written consent of Owner if the Servicer reasonably expects
the
impact to the Owner to be greater than $5,000 (which consent shall be deemed
to
have been provided if no response from Owner is provided within ten (10)
Business Days after written notice to Owner of Servicer’s intent to undertake
such initiative), that might result in a less costly alternative to the Owner
than foreclosure. Loss Mitigation Activity can include temporary forbearance,
pre-sales, loan modifications, loan repayments, accepting a deed-in-lieu and
deficiency judgments.
5
“Monthly
Payment”: The scheduled monthly payment of principal and interest on a Mortgage
Loan which is payable by a Mortgagor under the related Mortgage Note.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien on or
first priority ownership interest in an estate in fee simple, or a leasehold
estate, in real property securing a Mortgage Note, including any rider
incorporated by reference therein.
“Mortgage
File”: The items pertaining to a particular Mortgage Loan referred to in
Exhibit
C
annexed
hereto, which are delivered to the Custodian and not otherwise contained in
the
Mortgage Loan Servicing File, and any additional documents required to be added
to the Mortgage File pursuant to this agreement.
“Mortgage
Interest Rate”: The annual rate at which interest accrues on any Mortgage Loan
in accordance with the provisions of the related Mortgage Note.
“Mortgage
Loan”: An individual mortgage loan that is the subject of this Agreement, and
those that are made subject to this Agreement after the initial Effective Date
pursuant to the provisions specified herein.
“Mortgage
Loan Documents”: With respect to a Mortgage Loan, the original related Mortgage
Note with applicable addenda, riders allonges or modifications, the original
related Mortgage and the originals of any required addenda, riders allonges
or
modifications, the original related Assignment and any original intervening
related Assignments, the original related title insurance policy, related PMI
policy, if any, and the related appraisal report.
“Mortgage
Loan Remittance Rate”: With respect to each Mortgage Loan, the annual rate of
interest remitted to the Owner, which shall be equal to the related Mortgage
Interest Rate minus the Servicing Fee.
“Mortgage
Loan Servicing File”: With respect to each Mortgage Loan, the file retained by
the Servicer consisting of originals of all documents in the Mortgage File
which
are not delivered to the Custodian and copies of the Mortgage Loan Documents
listed in the Custodial Agreement the originals of which are delivered to the
Custodian pursuant to Section 2.04 as more fully set forth in Exhibit
C.
“Mortgage
Note”: The note or other evidence of the indebtedness of a Mortgagor secured by
the related Mortgage.
“Mortgaged
Property”: The real property and improvements subject to a Mortgage,
constituting security for repayment of the debt evidenced by the related
Mortgage Note.
“Mortgagor”:
The obligor on a Mortgage Note.
“New
Loan
Data File”: With respect to each Mortgage Loan delivered after the initial
Effective Date by Owner to be serviced by Servicer under this Agreement, the
data file produced by Owner pursuant to the Transfer Instructions that is used
to enable Servicer to set up each Mortgage Loan on its servicing
system.
6
“Officers’
Certificate”: A certificate signed by the President, a Senior Vice President or
a Vice President and by the Treasurer or the Secretary or one of the Assistant
Secretaries of the Servicer, or by other duly authorized officers or agents
of
the Servicer, and delivered to the Owner as required by this
Agreement.
“Opinion
of Counsel”: A written opinion of counsel, who may be salaried counsel employed
by the Servicer.
“Owner”:
RWT Holdings, Inc. and/or its assigns.
“P&I
Advance”: As to any Mortgage Loan, any advance made by the Servicer pursuant to
Section 5.03
“Pass-Through
Transfer”: The sale or transfer of some or all of the Mortgage Loans by the
Owner to a trust to be formed as part of a publicly issued or privately placed
mortgage-backed securities transaction.
“Person”:
Any individual, corporation, partnership, joint venture, association,
joint-stock Servicer, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“Prepayment
Interest Shortfall”: With respect to any Remittance Date, for each Mortgage Loan
that was the subject of a Principal Prepayment during the related Principal
Prepayment Period, an amount equal to the excess of one month’s interest at the
applicable Mortgage Loan Remittance Rate on the amount of such Principal
Prepayment over the amount of interest (adjusted to the Mortgage Loan Remittance
Rate) actually paid by the related Mortgagor with respect to such Principal
Prepayment Period.
“Primary
Insurance Policy”: With respect to each Mortgage Loan, the primary policy of
mortgage insurance in effect, or any replacement policy therefore obtained
by
the Servicer pursuant to Section 4.08.
“Principal
Prepayment”: Any
payment or other recovery of principal on a Mortgage Loan, full or partial,
which is received in advance of its scheduled Due Date, and which is not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of prepayment.
“Principal
Prepayment Period”: The calendar month preceding the month of the applicable
Remittance Date.
“Privacy
Requirements”: Means the obligations imposed by (i) Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. § 6801 et seq.; (ii) the applicable federal
regulations implementing such act and codified at 12 CFR Parts 40, 216, 332,
573, and/or 16 CFR Part 313; (iii) Interagency Guidelines Establishing Standards
For Safeguarding Borrower Information published in final form on February 1,
2001 (such final guidelines and/or rules the “Interagency Guidelines”) to
establish and maintain an information Security Program; and (iv) other
applicable federal, state and local laws, rules, regulations, and orders
relating to the privacy and security of Customer Information, including the
federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and similar state
laws.
7
“Qualified
Insurer”: A mortgage guaranty insurance Insurer duly authorized and licensed
where required by law to transact mortgage guaranty insurance business and
approved as an insurer by Xxxxxx Mae or Xxxxxxx Mac.
“Rating
Agencies” or “Rating Agencies” means any nationally recognized statistical
credit agency that at the time of any determination thereof has outstanding
a
rating on one or more classes of mortgage-backed securities or asset-backed
securities at the request of any issuer of mortgage-backed securities or
asset-backed securities.
“Reconstitution”:
Either a Whole Loan Transfer or a Pass-Through Transfer.
“Reconstitution
Date”: The date on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Whole Loan Transfer or Pass Through Transfer pursuant to Section 10.03 hereof.
The Reconstitution Date shall be such date designated by the Owner with thirty
(30) days prior notice to Servicer.
“Record
Date”: The close of business of the last Business Day of the month preceding the
month of the related Remittance Date.
“REMIC”:
A real estate mortgage investment conduit, as such term is defined by the
Internal Revenue Code of 1986, as amended.
“Remittance
Date”: The 18th
day of
any month, beginning on the 18th
day of
the month after the month of the applicable Transfer Date, or if such
18th
day is
not a Business Day, the first Business Day immediately preceding.
“REO
Disposition”: The final sale by the Servicer of a Mortgaged Property acquired by
the Servicer in foreclosure or by deed in lieu of foreclosure.
“REO
Disposition Proceeds”: All amounts received with respect to an REO Disposition
pursuant to Section 4.14.
“REO
Property”: A Mortgaged Property acquired by the Servicer through foreclosure or
deed in lieu of foreclosure, as described in Section 4.14.
“Servicer”:
GMAC Mortgage Corporation, a Pennsylvania corporation, or its successor in
interest or any successor to the Servicer under this Agreement appointed as
herein provided.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of REO Property pursuant to Section 4.14, and (d) compliance with the Servicer’s
obligations described in Sections 4.08 and 4.10.
8
“Servicing
Compensation “: The
amount of fees payable to the Servicer for the services provided in this
Agreement.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount the Owner shall pay to the
Servicer, which shall, for a period of one full month, be equal to one-twelfth
of the product of (a) the Servicing Fee Rate and (b) the Assumed Principal
Balance as of the first day of the related Due Period. The obligation of the
Owner to pay the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds, to the extent permitted hereunder) of Monthly
Payments collected by the Servicer, or as otherwise provided hereunder.
“Servicing
Fee Rate”: The Servicing Fee Rate shall be 0.375%.
“Servicing
Officer”: Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a
list
of servicing officers furnished by the Servicer to the Owner upon request,
as
such list may from time to time be amended.
“Servicing
Rights”: With respect to each Mortgage Loan, any and all of the following: (a)
all rights to service the Mortgage Loan; (b) all rights to receive servicing
fees, additional servicing compensation (including without limitation any late
fees, assumption fees, penalties or similar payments with respect to the
Mortgage Loan, and income on escrow accounts or other receipts on or with
respect to the Mortgage Loan, but excluding all prepayment penalties),
reimbursements or indemnification for servicing the Mortgage Loan, and any
payments received in respect of the foregoing and proceeds thereof; (c) the
right to collect, hold and disburse escrow payments or other similar payments
with respect to the Mortgage Loans and any amounts actually collected with
respect thereto and to receive interest income on such amounts to the extent
permitted by applicable law; (d) all accounts and other rights to payment
related to any of the property described in this paragraph; (e) possession
and
use of any and all Mortgage Loan Servicing Files pertaining to the Mortgage
Loans or pertaining to the past, present or prospective servicing of the
Mortgage Loans; (f) all rights and benefits relating to the direct solicitation
of the related Mortgagors for products and services or modification of the
Mortgage Loans and attendant right, title and interest in and to the list of
such Mortgagors and data relating to their respective Mortgage Loans; (g) all
rights, powers and privileges incident to any of the foregoing; and (h) all
agreements or documents creating, defining or evidencing any of the foregoing
rights to the extent they relate to such rights.
“Transfer
Instructions”: The instructions set forth on Exhibit
D,
detailing the procedures pursuant to which Servicer and Owner shall effect
the
assumption of the servicing obligations by Servicer, as the same may be amended
or supplemented from time to time with respect to Mortgage Loans delivered
on or
after the initial Effective Date to be serviced by Servicer under this
Agreement.
“XXXXX
File”: A schedule annexed to each New Loan Data File as specified in the
Transfer Instructions.
9
“Whole
Loan Transfer”: Any
sale
or transfer of some or all of the Mortgage Loans by the Owner to a third party,
which transfer is not a Pass Through Transfer.
ARTICLE
II
POSSESSION
OF MORTGAGE LOAN SERVICING FILES
Section
2.01 Servicing
of Mortgage Loans.
From
and
after each related Effective Date, the Servicer does hereby agree to service
the
Mortgage Loans on behalf of the Owner pursuant to the terms of this Agreement.
The rights of the Owner to receive payments with respect to the Mortgage Loans
shall be as set forth in this Agreement. Servicer
shall be deemed to be the owner of the Servicing Rights.
Section
2.02 Conveyance
of Mortgage Loan Servicing Files; Possession of Mortgage Loan
Servicing
Files.
The
Owner
shall deliver the Mortgage Loan Servicing Files to the Servicer in accordance
with the Transfer Instructions. The contents of each Mortgage Loan Servicing
File are and shall be held in trust by the Servicer for the benefit of the
Owner
as the owner thereof and the Servicer’s possession of each Mortgage Loan
Servicing File so retained is at the will of the Owner for the sole purpose
of
servicing the related Mortgage Loan, and such retention and possession by the
Servicer is in a custodial capacity only. The Mortgage Loan Servicing File
may
be retained in microfilm, microfiche, optical storage or magnetic media in
lieu
of hard copy. The Servicer shall maintain records confirming the Owner’s
ownership interest in the Mortgage Loan Servicing File. The Servicer shall
release from its custody the contents of any Mortgage Loan Servicing File only
in accordance with written instructions from the Owner, unless such release
is
required as incidental to the Servicer’s servicing of the Mortgage Loans. Owner
may request the release of the contents of any Mortgage Loan Servicing File
at
any time; Servicer shall deliver the requested contents within five (5) business
days of its receipt of Owner’s written request, and Owner shall reimburse
Servicer for Servicer’s reasonable out of pocket expenses in connection with
such delivery.
Section
2.03 Books
and Records.
Record
title to each Mortgage and the related Mortgage Note shall continue in the
name
of the Owner, provided, however, that, subject to Customary Servicing
Procedures, Servicer shall have no responsibility or liability under this
Agreement for acts, errors or omissions resulting from Servicer’s lack of record
title in each Mortgage and the related Mortgage Notes. All rights arising out
of
the Mortgage Loans including, but not limited to, all funds received on or
in
connection with a Mortgage Loan shall be held by the Servicer in trust for
the
benefit of the Owner as the owner of the Mortgage Loans, subject to subsequent
deduction of amounts to which the Servicer is entitled pursuant to the terms
of
this Agreement.
Section
2.04 Custodial
Agreement: Delivery of Documents.
The
Owner
shall deliver to the Custodian those Mortgage Loan Documents as required by
Exhibit
C
to this
Agreement with respect to each Mortgage Loan. The Custodian will certify its
receipt of all such Mortgage Loan Documents required to be delivered pursuant
to
the Custodial Agreement, as evidenced by the Initial Certification of the
Custodian in the form annexed to the Custodial Agreement. The Owner will be
responsible for the fees and expenses of the Custodian.
10
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 within one (1) week of their
execution, provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
ten
(10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty days of its submission for recordation.
Section
2.05 Tax
Service/Flood Service.
The
Servicer shall obtain, at Owner’s cost and expense, a valid fully paid, freely
transferable, life of loan, tax service contract and flood service contract
for
each Mortgage Loan with a vendor selected by the Servicer as specified in the
Transfer Instructions. If Owner delivers, or causes to be delivered, existing
tax service contracts or flood service contracts for any Mortgage Loan, the
Servicer may convert such contracts, at Owner’s cost and expense, to one issued
by the vendor selected by Servicer.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 General
Representations and Warranties of the Servicer and
Owner.
Each
of
the Servicer and Owner hereby represents and warrants to the other that, as
of
the initial and each Effective Date:
(a) Due
Organization and Authority.
With
respect to Servicer, it is a corporation duly organized, validly existing and
in
good standing under the laws of the state of incorporation and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
to
conduct business of the type conducted by it, and in any event it is in
compliance with the laws of any such state to the extent necessary to ensure
the
enforceability of the related Mortgage Loan and the servicing of such Mortgage
Loan in accordance with the terms of this Agreement. With respect to Owner,
it
is a corporation, organized, existing and in good standing under the laws of
the
State of Delaware. With respect to each, it has the full corporate power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement by it and
the consummation of the transactions contemplated hereby have been duly and
validly authorized; With respect to each, this Agreement evidences the valid,
binding and enforceable obligation of it; and all requisite corporate action
has
been taken by it to make this Agreement valid and binding upon it in accordance
with its terms;
(b) No
Conflicts.
Neither
the execution and delivery of this Agreement, or the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of
this Agreement will conflict with or result in a breach of any of its terms,
articles of incorporation or by-laws or any legal restriction or any agreement
or instrument to which it is now a party or by which it is bound, or constitute
a default or result in the violation of any law, rule, regulation, order,
judgment or decree to which it or its property is subject;
11
(c) Ability
to Service.
With
respect to the Servicer only, the Servicer is an approved seller/servicer of
conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Servicer
is in good standing to service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac
and
no event has occurred with respect to the Servicer which would make the Servicer
unable to comply with eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
(d) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or threatened against
it
which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of it, or in any material impairment of the right or
ability of it to carry on its business substantially as now conducted, or in
any
material liability on the part of it, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
contemplated herein, or which would be likely to impair materially the ability
of it to perform under the terms of this Agreement; and
(e) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by it of or
compliance by it with this Agreement, or if required, such approval has been
obtained prior to the applicable Effective Date.
Section
3.02 Representations,
Warranties and Covenants of Owner.
The
Owner
hereby represents and warrants as of the applicable Effective Date with respect
to each Mortgage loan, and covenants to the Servicer that:
(a) Mortgage
Loans as Described.
The
information set forth in XXXXX File attached to each New Loan Data File is
true
and correct in all material respects.
(b) Delivery
of Books and Records.
Owner
will, on or before the applicable Effective Date, deliver, or cause to be
delivered, to the Servicer or any custodian, as applicable, all of the books,
records, data, files and Mortgage Loan Servicing Files, including records on
microfiche or its equivalent, reasonably required by the Servicer to document
and service each Mortgage Loan; such books, records, data, files and documents
shall contain all of the items (including but not limited to hazard insurance
policies, flood insurance policies and private mortgage insurance policies)
which are required by applicable law and Customary Servicing Procedures to
service the Mortgage Loans, are true, accurate and complete in all material
respects.
(c) Flood
Insurance.
If any
of the Mortgage Loans are secured by Mortgaged Properties located in Federal
Emergency Management Agency designated flood areas, then (to the extent required
by Applicable Requirements) flood insurance policies are or will be in full
force and effect in the amounts required by Owner under Applicable
Requirements.
12
(d) Hazard
Insurance.
All
Mortgaged Properties are insured against fire and have extended coverage
insurance in the amounts required by [Xxxxxx Xxx]; all insurance premiums on
such insurance policies have been or will have been paid in a timely manner;
and
there have been no fire losses on the Mortgaged Properties where Owner’s
estimate of loss is materially greater than the net recovery from the fire
insurance carrier. To Owner’s knowledge, there have been no fire losses on the
Mortgaged Properties as to which there is a pending coinsurance claim.
(e) High
Cost Loans.
No
Mortgage Loan is a High Cost Loan or subject to HOEPA.
(f) Tax
Contracts.
All
Mortgage Loans have a fully paid, freely transferable tax service contract.
If a
tax service contract is not provided, Owner shall reimburse Servicer for its
cost to obtain such a contract. Owner shall reimburse Servicer for any expenses
incurred for transferring existing tax contracts.
Section
3.03 Survival.
The
representations and warranties of the Owner and the Servicer in this Article
III
shall survive the applicable Effective Date.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Standards
of Servicer.
The
Servicer, as independent contract servicer, shall service and administer the
Mortgage Loans for the benefit of the Owner in accordance with the terms of
this
Agreement, Applicable Requirements and in conformity with Customary Servicing
Procedures. In performing its obligations hereunder, the Servicer shall exercise
no less than the same care that it customarily employs and exercises in
servicing and administering mortgage loans for its own account, but shall
perform such obligations without regard to the Servicer’s obligation to make
Servicing Advances, or to the Servicer’s right to receive compensation for its
services hereunder.
From
and
after the initial Effective Date, the Servicer shall assume responsibility
under
this Agreement to service and administer additional Mortgage Loans upon the
delivery, in accordance with the Transfer Instructions, of the related New
Loan
Data File and all related Mortgage Loan documentation by the Owner, provided
that any new Mortgage Loans that the Owner desires to make subject to this
Agreement meet the Eligibility Criteria then in effect. The Owner shall provide
the New Loan Data File for each Mortgage Loan to the Servicer promptly upon
purchase or origination of the Mortgage Loan by the Owner, as specified in
the
Transfer Instructions. The Owner shall notify the Servicer of any changes in
the
information contained in the New Loan Data File as specified in the Transfer
Instructions. The Owner agrees to provide the Servicer, within two (2) Business
Days after the Servicer’s request, copies of the Mortgage Note, the Mortgage or
any other documents the Owner has with respect to a Mortgage Loan that the
Servicer deems reasonably necessary in connection with its performance of the
servicing of said Mortgage Loan. The Servicer shall cooperate with the Owner
in
connection with any transfer of the Servicing Rights with respect to the
Mortgage Loans.
13
Subject
to the above-described servicing standards, the specific requirements and
prohibitions of this Agreement and the respective Mortgage Loans, and the
provisions of any Primary Insurance Policy and applicable law, the Servicer
shall have full power and authority, acting alone, to do any and all things
in
connection with such servicing and administration which the Servicer may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer shall, and is hereby authorized and empowered to (i) execute and
deliver on behalf of itself and the Owner, any and all instruments of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loan and with respect
to the Mortgaged Property and (ii) 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 the related Mortgagor if in the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is in the interests of the Owner and is not
prohibited by a Primary Insurance Policy; provided, however, that the Servicer
may not, unless it has obtained the consent of the Owner, permit any
modification with respect to any Mortgage Loan that would vary the Mortgage
Interest Rate, defer or forgive the payment of interest or of any principal,
reduce the outstanding principal amount (other than as a result of its actual
receipt of payment of principal on), extend the final maturity date of such
Mortgage Loan, or accept substitute or additional collateral or release any
collateral for a Mortgage Loan. Notwithstanding
anything to the contrary in the this Agreement, in the event of a Pass-Through
Transfer for which Servicer continues to service any Mortgage Loan, the Servicer
shall not make or permit any modification, waiver or amendment of any term
of a
Mortgage Loan that could cause any REMIC holding such Mortgage Loan to fail
to
qualify as a REMIC or result in the imposition of any tax under Section 860F(a)
or 860G(d) of the Code on any REMIC holding such Mortgage Loan. The
Owner
shall furnish the Servicer with a corporate resolution executed by the Board
of
Directors of Owner and appointing certain employees of Servicer to be officers
of Owner for the limited purpose of executing certain documents in connection
with Servicer’s performance of its obligations under this Agreement, in the form
of Exhibit
E
hereto,
no later than the initial Effective Date and if reasonably required by the
Servicer, such other documents necessary or appropriate to enable the Servicer
to carry out its servicing and administrative duties under this
Agreement.
The
Servicer shall perform all of its servicing responsibilities hereunder and
may
cause a subservicer to perform any of its responsibilities on its behalf, but
the use by the Servicer of a subservicer shall not release the Servicer from
any
of its obligations hereunder and the Servicer shall remain responsible hereunder
for all acts and omissions of each subservicer as fully as if such acts and
omissions were those of the Servicer. The Servicer shall pay all fees and
expenses of each subservicer from its own funds.
At
the
cost and expense of the Servicer, without any right of reimbursement from the
Custodial Account, the Servicer shall be entitled to terminate the rights and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Servicer, at the
Servicer’s option, from electing to service the related Mortgage Loans itself.
In the event that the Servicer’s responsibilities and duties as servicer under
this Agreement are terminated pursuant to Section 8.03, 9.01 or 10.01, and
if
requested to do so by the Owner, the Servicer shall at its own cost and expense
terminate the rights and responsibilities of each subservicer effective as
of
the date of termination of the Servicer. The Servicer shall pay all fees,
expenses or penalties necessary in order to terminate the rights and
responsibilities of each subservicer from the Servicer’s own funds without
reimbursement from the Owner.
14
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and a subservicer or any reference herein to actions taken
through a subservicer or otherwise, the Servicer shall not be relieved of its
obligations to the Owner and shall be obligated to the same extent and under
the
same terms and conditions as if it alone were servicing and administering the
Mortgage Loans. The Servicer shall be entitled to enter into an agreement with
a
subservicer for indemnification of the Servicer by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement, and any other transactions or services relating to
the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and Servicer alone, and the Owner shall have no obligations, duties
or liabilities with respect to such subservicer including no obligation, duty
or
liability of Owner to pay such subservicer’s fees and expenses. For purposes of
distributions and advances by the Servicer pursuant to this Agreement, the
Servicer shall be deemed to have received a payment on a Mortgage Loan when
a
subservicer has received such payment.
Section
4.02 Liquidation
of Mortgage Loans; Servicing Advances and Foreclosure.
If
any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
is not paid when the same becomes due and payable, or if the Mortgagor fails
to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall take
such action as it shall deem to be in the best interests of the Owner. If any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
remains delinquent for a period of 90 days or more, the Servicer shall (a)
act
in the best interests of the Owner, and such action may include the commencement
of foreclosure proceedings or the sale of such Mortgage Loan, (b) if the
Servicer commences foreclosure proceedings, notify the Owner thereof on the
monthly remittance report delivered pursuant to Section 5.02 on the first
Remittance Date following such commencement and (c) respond to reasonable
inquiries of the Owner with respect to the Mortgage Loan or related REO
Property. Notwithstanding the foregoing, the Servicer may not sell a delinquent
Mortgage Loan unless it has obtained the consent of the Owner. The Owner may
instruct the Servicer to commence foreclosure proceedings on any Mortgage Loan
for which any payment remains delinquent for a period of 120 days or more.
If
the Servicer has commenced foreclosure proceedings, it shall notify the Owner
as
above provided and thereafter periodically advise the Owner of the status of
the
foreclosure proceedings and follow the Owner’s instructions in connection
therewith.
Whether
in connection with the foreclosure of a Mortgage Loan or otherwise and prior
to
such time as title to such Mortgaged Property is liquidated, the Servicer shall
from its own funds make all necessary and proper Servicing Advances; provided,
however, that the Servicer is not required to make a Servicing Advance unless
the Servicer determines in the exercise of its good faith reasonable judgment
that such Servicing Advance would ultimately be recoverable from REO
Dispositions, Insurance Proceeds or Condemnation Proceeds (with respect to
each
of which the Servicer shall have the priority described in Section 4.05 for
purposes of withdrawals from the Custodial Account). In the event that any
Servicing Advance or any commitment to pay a Servicing Advance in connection
with any Mortgage Loan exceeds $5,000, the Servicer shall secure the written
approval of the Owner.
15
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, the
Servicer shall have no obligation to commence foreclosure proceedings or obtain
title to Mortgage Property securing a Mortgage Loan as a result of or in lieu
of
foreclosure or otherwise if (i) such Mortgage Loan is subject to the HOEPA
or
any regulations related thereto, (ii) such Mortgage Loan qualifies as a High
Cost Loan under a state anti-predatory lending law or regulation, or (iii)
a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes.
If the Owner requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector at the Owner’s expense. Upon completion of the inspection, the
Servicer shall promptly provide the Owner with a written report of the
environmental inspection. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Owner directs the Servicer to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 4.05 hereof. In the event the Owner directs the
Servicer not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed for all Servicing Advances made
with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Servicer will use reasonable efforts, in accordance with
this
Agreement, to collect all payments due under each of the Mortgage Loans when
the
same shall become due and payable, and will take reasonable care in ascertaining
and estimating annual taxes, assessments, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in any
Mortgage, will become due and payable in order that the installments payable
by
the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Section
4.04 Establishment
of Custodial Account; Deposits in Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan and REO Property separate and apart from any of its own
funds
and general assets and shall establish and maintain one or more Custodial
Accounts (collectively, the “Custodial Account”), in the form of time deposit or
demand accounts. The Custodial Account shall be established with an Eligible
Depository Institution. The creation of any Custodial Account shall be evidenced
by a letter agreement in the form of Exhibit
F
hereto.
A copy of such certification or letter agreement shall be furnished to the
Owner
upon request.
16
The
Servicer shall deposit in a mortgage clearing account on a daily basis and
in
the Custodial Account no later than the second Business Day thereafter and
retain therein:
(i) all
scheduled payments due and collected under the Mortgage Note after the Effective
Date on account of principal, including Principal Prepayments collected after
the Effective Date (and with respect to each full or partial Principal
Prepayment, any Prepayment Interest Shortfall to the extent of the Servicer’s
aggregate Servicing Fee received with respect to the related Prepayment Period),
on the Mortgage Loans;
(ii) all
payments collected on account of interest on the Mortgage Loans;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds, including amounts required to be deposited pursuant to
Section 4.10 and Section 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Customary Servicing Procedures,
the
Mortgage Loan documents or applicable law;
(v) all
Condemnation Proceeds with respect to any Mortgaged Property which are not
released to the Mortgagor in accordance with Customary Servicing Procedures,
the
Mortgage Loan documents or applicable law;
(vi) any
P&I Advances; and
(vii) any
amount required to be deposited in the Custodial Account pursuant to Sections
4.01, 4.11, 4.14, 4.17, 5.01 and 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive.
Any interest paid and investment income on funds deposited in the Custodial
Account by the Eligible Depository Institution shall accrue to the benefit
of
the Servicer and shall be considered Ancillary Income (excluding prepayment
penalties) payable in accordance with the terms of this Agreement. Payments
in
the nature of late payment charges, fees for special services provided to a
Mortgagor, assumption fees and all other Ancillary Income may be retained by
the
Servicer and do not need to be deposited in the Custodial Account..
The
Servicer may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Servicer for the benefit of the Owner, which
shall
mature not later than the Business Day next preceding the Remittance Date next
following the date of such investment (except that (i) any investment in the
institution with which the Custodial Account is maintained may mature on such
Remittance Date and (ii) any other investment may mature on such Remittance
Date
if the Servicer shall advance funds on such Remittance Date, pending receipt
thereof to the extent necessary to make distributions to the Owner) and shall
not be sold or disposed of prior to maturity. Notwithstanding anything to the
contrary herein and above, all income and gain realized from any such investment
shall be for the benefit of the Servicer and shall be considered Ancillary
Income payable in accordance with the terms of this Agreement. The amount of
any
losses incurred in respect of any such investments shall be deposited in the
Custodial Account by the Servicer out of its own funds immediately as
realized.
17
Section
4.05 Withdrawals
From the Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in Section
5.01;
(ii) to
reimburse itself for P&I Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan that represent payments of principal and/or interest respecting
which any such P&I Advance was made;
(iii) to
reimburse itself first
for
unreimbursed Servicing Advances and second
for
xxxxxxxxxxxx X&X Advances, the Servicer’s right to reimburse itself pursuant
to this subclause (iii) with respect to any Mortgage Loan being limited to
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Servicer’s right
thereto shall be prior to the rights of the Owner;
(iv) to
reimburse itself for unreimbursed Servicing Advances and advances of Servicer
funds made pursuant to Section 5.03 of this Agreement to the extent that such
amounts are nonrecoverable by the Servicer pursuant to subclause (iii)
above
(v) to
reimburse itself for all expenses necessary for the proper operation, management
and maintenance of each REO Property, including the cost of maintaining any
hazard insurance pursuant to Section 4.10 and the fees of any managing agent
of
the Servicer or a subservicer, it being understood that, in the case of any
such
expenditure or withdrawal related to a particular REO Property, the amount
of
such expenditure or withdrawal from the Custodial Account shall be limited
to
amounts on deposit in the Custodial Account with respect to the related REO
Property;
(vi) to
pay
itself with respect to each Mortgage Loan the Servicing Compensation pursuant
to
Section 6.03;
(vii) to
transfer funds to another Eligible Depository Institution in accordance with
Section 4.09 hereof;
(viii)
to
remove
funds inadvertently placed in the Custodial Account in error by the Servicer;
and
18
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
On
each
Remittance Date, the Servicer shall withdraw all funds from the Custodial
Account. The Servicer may use such withdrawn funds only for the purposes
described in this Section 4.05.
Section
4.06 Establishment
of Escrow Account; Deposits in Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts (collectively, the “Escrow Account”), in the form of time
deposit or demand accounts. The Escrow Account shall be established with an
Eligible Depository Institution. The creation of any Escrow Account shall be
evidenced by a letter agreement in the form of Exhibit
G
hereto.
Upon request, the Servicer shall provide the Owner with a copy of a letter
agreement evidencing the establishment of each Escrow Account.
The
Servicer shall deposit in a mortgage clearing account on a daily basis and
no
later than the second Business Day thereafter in the Escrow Account and retain
therein: (i) all Escrow Payments held or collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, (ii) all Insurance Proceeds that are to
be
applied to the restoration or repair of any Mortgaged Property and (iii) all
revenues received with respect to the management, conservation, protection
and
operation of the REO Properties pursuant to Section 4.14. The Servicer shall
make withdrawals therefrom only to effect such payments as are required under
this Agreement, and for such other purposes as shall be set forth in or in
accordance with Section 4.07. Any interest paid on funds deposited in an Escrow
Account by the Eligible Depository Institution other than interest on escrowed
funds required by law to be paid to the Mortgagor shall accrue to the benefit
of
the Servicer and shall be considered Ancillary Income payable in accordance
with
the terms of this Agreement. To the extent required by law, the Servicer shall
pay interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
Section
4.07 Withdrawals
From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer only (a) to effect timely
payments of taxes, assessments, Primary Insurance Policy premiums, fire and
hazard insurance premiums or other items constituting Escrow Payments for the
related Mortgage, (b) to reimburse the Servicer for any Servicing Advance made
by Servicer pursuant to Sections 4.08 and 4.10 hereof with respect to a related
Mortgage Loan, but only from amounts received on the related Mortgage Loan
which
represent late payments or collections of Escrow Payments thereunder, (c) to
refund to any Mortgagor any funds found to be in excess of the amounts required
under the terms of the related Mortgage Loan, (d) upon default of a Mortgagor
or
in accordance with the terms of the related Mortgage Loan and if permitted
by
applicable law, for transfer to the Custodial Account of such amounts as are
to
be applied to the indebtedness of a Mortgage Loan in accordance with the terms
thereof, (e) for application to restoration or repair of the Mortgaged Property,
(f) to pay to the Owner in accordance with the terms of this Agreement , or
to
the Mortgagor to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (g) to deposit into the Custodial Account
the
funds required to be deposited therein pursuant to Section 4.14, (h) to pay
to
itself amounts to which it is entitled pursuant to Section 4.14, (i) to remove
funds inadvertently placed in an Escrow Account in error by the Servicer, (j)
to
transfer funds to another Eligible Depository Institution in accordance with
Section 4.09 hereof or (k) to clear and terminate the Escrow Account upon the
termination of this Agreement.
19
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of taxes, assessments, and other charges for which an
escrow is maintained and the status of Primary Insurance Policy premiums 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 employing for such purpose deposits of the Mortgagor
in
the Escrow Account which shall have been estimated and accumulated by the
Servicer in amounts sufficient for such purposes, as allowed under the terms
of
the Mortgage or applicable law. To the extent that a Mortgage does not provide
for Escrow Payments, or the Servicer has waived the escrow of Escrow Payments
or
the Servicer is prohibited by applicable state law from requiring the escrow
of
Escrow Payments, the Servicer shall use commercially reasonable efforts to
seek
to determine that any such payments are made by the Mortgagor. The Servicer
assumes full responsibility for the timely payment of all such bills and shall
effect timely payments of all such bills irrespective of each Mortgagor’s
faithful performance in the payment of same or the making of the Escrow Payments
and shall make Servicing Advances from its own funds to effect such payments,
subject to reimbursement pursuant to Section 4.07 hereof.
Section
4.09 Transfer
of Accounts.
The
Servicer may from time to time transfer the Custodial Account and the Escrow
Account to an Eligible Depository Institution, provided that the Servicer
provides written notice of such transfer within 14 Business Days
thereafter.
Section
4.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan, fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located, in an amount which is, subject to applicable law, at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing the related Mortgage Loan and (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) the minimum amount necessary
to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, and that
has federally-mandated flood insurance requirements (and such flood insurance
has been made available) the Servicer will cause to be maintained a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the full insurable
value of the Mortgaged Property, or (iii) the maximum amount of insurance
available under the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973, each as amended. The Servicer shall also maintain on
any
REO Property, fire and hazard insurance with extended coverage in an amount
which is at least equal to the maximum insurable value of the improvements
which
are a part of such property, liability insurance and, to the extent required
and
available under the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973, each as amended, flood insurance in an amount required
above. Any amounts collected by the Servicer under any such policies (other
than
amounts to be deposited in the Escrow Account and applied to the restoration
or
repair of the related Mortgaged Property, REO Property, or released to the
Mortgagor in accordance with Customary Servicing Procedures or in accordance
with the terms of the Mortgage Loan or applicable law) shall be deposited in
the
Custodial Account, subject to withdrawal pursuant to Section 4.05. It is
understood and agreed that no earthquake or other additional insurance need
be
required by the Servicer of any Mortgagor or maintained 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. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer, its successors
and
its assigns, or, upon request of the Owner, to the Owner, and shall provide
for
at least 30 days prior written notice to the Servicer of any cancellation
thereof. The Servicer shall not accept or obtain any such insurance policy
from
an insurance company that does not at that time maintain a General Policy Rating
of B-III or better in Best’s Key Rating Guide. Servicing Advances made under
this Section 4.10 shall be eligible for reimbursement pursuant to Section 4.10
hereof.
20
Section
4.11 Maintenance
of Blanket Insurance Policy.
If
the
Servicer obtains and maintains a blanket insurance policy that is issued by
an
insurer generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac and that insures
against hazard losses on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the coverage required pursuant
to
Section 4.10 and otherwise complies with all other requirements of Section
4.10,
the Servicer shall be deemed to have satisfied its obligations as set forth
in
Section 4.10. Such policy may contain a clause providing for a reasonable
deductible, in which case the Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
4.10, and if there shall have been a loss that would have been covered by such
policy, deposit in the Custodial Account the amount not otherwise payable under
the blanket policy because of such deductible clause.
Section
4.12 Maintenance
of Mortgage Impairment Insurance Policy.
The
Servicer may satisfy its obligations under Section 4.10 and 4.11 pertaining
to
physical storage of insurance policies and general policy rating requirements
by
maintaining a mortgage impairment or other form of blanket policy that will
protect the Servicer and/or Owner in the event of uninsured loss, insolvency
of
an insurance carrier or any other loss normally to be covered by a mortgage
impairment policy. It is agreed that any expense incurred by the Servicer in
maintaining any such insurance shall be borne by the Servicer. This shall be
deemed to include any loss or any expense as a result of a deductible clause
in
such a policy.
21
Section
4.13 Fidelity
Bond; Errors and Omissions Insurance.
The
Servicer at its own expense shall maintain with responsible companies throughout
the term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy, with broad coverage on all officers, employees and other
individuals acting on behalf of the Servicer in connection with its activities
under this Agreement. The amount of coverage shall be at least equal to the
coverage that would be required of the Servicer by Xxxxxx Mae or Xxxxxxx Mac,
if
the Servicer were servicing the Mortgage Loans for Xxxxxx Mae or Xxxxxxx Mac,
and such policy shall be issued by a company that is acceptable to Xxxxxx Mae
or
Xxxxxxx Mac. The Fidelity Bond and errors and omissions insurance shall be
in
the form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Servicer against losses caused by such individuals, including losses from
forgery, theft, embezzlement, fraud, errors and omissions and negligent acts
of
such individuals. Such Fidelity Bond shall also protect and insure the Servicer
against losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.13 requiring such fidelity
bond
and errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement.
Section
4.14 Title,
Management and Disposition of REO Property.
Subject
to Section 4.02, if title to a Mortgaged Property is acquired in foreclosure
or
by deed in lieu of foreclosure, the deed or certificate of sale shall be taken
in the name of the Servicer or its nominee, in either case as nominee, for
the
benefit of the Owner on the date of acquisition of title (the “REO Owner”);
provided, however, that the Servicer shall not be required to take title in
its
own name if it reasonably determines that such record ownership could harm
the
interests of the Owner or the Servicer. In the event the Servicer is not
authorized or permitted or elects not to hold title to real property in the
state in which the REO Property is located, or would be adversely affected
under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an opinion of counsel obtained by the Servicer, at
expense of the REO Owner, from an attorney duly licensed to practice law in
the
state where the REO Property is located. The Person or Persons holding such
title other than the REO Owner shall acknowledge in writing that such title
is
being held as nominee for the REO Owner.
In
the
event of a Pass-Through Transfer for which Servicer continues to service any
Mortgage Loan, the REO Property must be sold within three years following the
end of the calendar year of the date of acquisition if a REMIC election has
been
made with respect to the arrangement under which the Mortgage Loans and REO
Property are held, unless (i) the Purchaser shall have been supplied with an
Opinion of Counsel (at the Owner’s expense) to the effect that the holding by
the related trust of such Mortgaged Property subsequent to such three-year
period (and specifying the period beyond such three-year period for which the
Mortgaged Property may be held) will not result in the imposition of taxes
on
“prohibited transactions” of the related trust as defined in Section 860F of the
Code, or cause the related REMIC to fail to qualify as a REMIC, in which case
the related trust may continue to hold such Mortgaged Property (subject to
any
conditions contained in such Opinion of Counsel), or (ii) the Purchaser (at
the
Owner’s expense) or the Servicer shall have applied for, prior to the expiration
of such three-year period, an extension of such three-year period in the manner
contemplated by Section 856(e)(3) of the Code, in which case the three-year
period shall be extended by the applicable period. If a period longer than
three
years is permitted under the foregoing sentence and is necessary to sell any
REO
Property, the Servicer shall report monthly to the Purchaser as to progress
being made in selling such REO Property.
22
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made, no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of the
related trust or sold in such a manner or pursuant to any terms that would
(i)
cause such Mortgaged Property to fail to qualify at any time as “foreclosure
property” within a meaning of Section 860G(a)(8) of the Code, (ii) subject to
the related trust to the imposition of any federal or state income taxes on
“net
income from foreclosure property” with respect to such Mortgaged Property within
the meaning of Section 860G(c) of the Code, or (iii) cause the sale of such
Mortgaged Property to result in the receipt by the related trust or any income
from non-permitted assets as described in Section 860F(a) (2)(B) of the Code,
unless the Servicer has agreed to indemnify and hold harmless the related trust
with respect to the imposition of any such taxes.
The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate each REO Property for the REO Owner solely
for the purpose of its prompt disposition and sale, and in same manner that
it
would be required to manage, conserve, protect and operate foreclosed property
for its own account (subject to the condition described in the second paragraph
of Section 4.02); provided, however, that the Servicer’s obligations with
respect to such REO Property shall in no way limit the right of the REO Owner
to
assume responsibility for the maintenance and sale of properties obtained
through foreclosure proceedings or through other means in lieu of foreclosure
proceedings. 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
reasonable interest of the REO Owner in accordance with Customary Servicing
Procedures. If Owner has notified the Servicer in writing that an REO Property
is held as part of a REMIC, the Servicer will make reasonable efforts to sell
such REO Property within the time necessary to preserve such REMIC status as
advised by Owner in the notice thereof.
The
Servicer shall cause to be deposited in the Escrow Account, on a daily basis
upon receipt thereof, all revenues received with respect to the conservation
and
disposition of the related REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of the related
REO Property, including the cost of maintaining any hazard insurance pursuant
to
Section 4.10 hereof and the fees of any managing agent acting on behalf of
the
Servicer. Any disbursement in excess of $5,000 shall be made only with the
written approval of the REO Owner. For purposes of the preceding sentence,
any
approval given by the Owner shall constitute approval by the REO Owner. On
or
before each Determination Date, the Servicer shall withdraw from the Escrow
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the Escrow Account less any reserves required to be
maintained in the Escrow Account from time to time to satisfy reasonably
anticipated expenses. The Servicer shall furnish to the Owner on each Remittance
Date, an operating statement for each REO Property covering the operation of
each REO Property for the previous month and the Servicer’s efforts in
connection with the sale of that REO Property. Such statement shall be
accompanied by such other information as the Owner shall reasonably request.
23
Each
REO
Disposition shall be carried out by the Servicer at such price, and upon such
terms and conditions, as the Servicer deems to be in the reasonable interests
of
the REO Owner consistent with Customary Servicing Procedures; provided, however,
that the Servicer, prior to any such disposition, shall notify the REO Owner
in
writing of such price, terms and conditions and shall proceed with such
disposition only if the Servicer is not otherwise directed by the REO Owner
in a
writing delivered to the Servicer not later than the tenth Business Day
following the Servicer’s delivery of such notice to the REO Owner. For purposes
of the preceding sentence, any direction given by the Owner shall constitute
a
direction by the REO Owner. If upon the acquisition of title to the Mortgaged
Property by foreclosure sale or deed in lieu of foreclosure or otherwise, there
remain outstanding xxxxxxxxxxxx X&X Advances pursuant to Section 5.03 with
respect to the Mortgage Loan or if, upon liquidation as provided in this Section
4.14, there remain outstanding any unreimbursed Servicing Advances with respect
to the Mortgaged Property or the Mortgage Loan, the Servicer shall be entitled
to reimbursement from the proceeds received in connection with the disposition
of the Mortgaged Property, and from the Owner if such proceeds are insufficient,
for any related unreimbursed Servicing Advances or related xxxxxxxxxxxx X&X
Advances pursuant to Section 5.03. On the Remittance Date immediately following
the Principal Prepayment Period in which REO Disposition Proceeds are received,
the net cash proceeds of such REO Disposition shall be distributed to the REO
Owner. In the event that the Servicer is billed for expenses related to an
REO
Property subsequent to the date on which the net cash proceeds of such REO
Disposition are distributed to the REO Owner, the Servicer shall pay such
expenses and shall thereupon be entitled to reimburse itself therefore by
withdrawing the amount of such expenses from the Custodial Account.
Section
4.15 Transfer
Notices.
(a) Within
fifteen (15) days before the applicable Effective Date with respect to the
Mortgage Loans, the Owner shall cause any required notices (“Goodbye Letters”)
to the Mortgagors of the transfer of the servicing function contemplated herein
to be delivered to the Mortgagors. Such Goodbye Letters shall be prepared and
delivered by or on behalf of the Owner in accordance with applicable law and
the
Transfer Instructions. Within fifteen (15) days before the applicable Effective
Date with respect to the Mortgage Loans, the Servicer shall cause any required
notices (“Hello Letters”) to the Mortgagors of the Servicer’s assumption of the
servicing function contemplated herein to be delivered to the Mortgagors. Such
Hello Letters shall be prepared and delivered by the Servicer in accordance
with
applicable law and the Transfer Instructions. The parties shall cooperate to
accomplish such notification in a timely and efficient manner as will best
facilitate the assumption by the Servicer of the servicing responsibilities.
The
form of the Goodbye Letters and Hello Letters to be sent to Mortgagors shall
be
approved by the Owner and the Servicer before mailing.
(b) The
Owner
shall notify, or cause to be notified, all Insurers, by overnight or registered
mail, that all insurance premium xxxxxxxx for the Mortgage Loans must be sent
to
the Servicer. Additionally, the Owner shall, prior to the applicable Effective
Date, obtain the written consent of any Insurers that have the contractual
right
to approve the assumption of the servicing responsibilities by the
Servicer.
24
(c) The
Owner, with the reasonable assistance of the Servicer, shall notify the
applicable taxing authorities (except as such is handled through the tax service
company on any tax service contracts procured by the Servicer) of the assumption
of the servicing responsibilities by the Servicer and include instructions
to
deliver all notices and tax bills to the Servicer or the applicable tax service
provider, as the case may be, from and after the Effective Date.
(d) The
Owner
shall notify all attorneys who, on the Effective Date, are providing legal
services to or on behalf of the Owner in connection with pending foreclosure
or
litigation involving one or more of the Mortgage Loans, of the transfer of
the
servicing function with respect to the Mortgage Loans to the
Servicer.
(e) The
costs
and expenses related to the notices required to be provided under Subsections
(b), (c) and (d) above shall be paid by the Owner. Each of Owner and Servicer
shall be responsible for their respective costs incurred in connection with
subsection (a) above.
Section
4.16 Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Owner prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Customary Servicing Procedures. For claims greater than $15,000,
at a minimum the Servicer shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
(i) The
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Servicer shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Owner is named as an additional loss payee, the Servicer is hereby empowered
to
endorse any loss draft issued in respect of such a claim in the name of the
Owner.
Section
4.17 Maintenance
of PMI Policy; Claims.
With
respect to each Mortgage Loan with an LTV in excess of 80%, the Servicer shall
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy insuring the portion over 78% until terminated pursuant to the Homeowners
Protection Act of 1998, 12 UCS §4901, et seq. In the event that such PMI Policy
shall be terminated other than as required by law, the Servicer shall obtain
from another Qualified Insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated PMI Policy. If
the
insurer shall cease to be a Qualified Insurer, the Servicer shall determine
whether recoveries under the PMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Servicer
shall in no event have any responsibility or liability for any failure to
recover under the PMI Policy for such reason. If the Servicer determines that
recoveries are so jeopardized, it shall notify the Owner and the Mortgagor,
if
required, and obtain from another Qualified Insurer a replacement insurance
policy. The Servicer shall not take any action which would result in noncoverage
under any applicable PMI Policy of any loss which, but for the actions of the
Servicer would have been covered thereunder. In connection with any assumption
or substitution agreement entered into or to be entered into pursuant to Section
6.01, the Servicer shall promptly notify the insurer under the related PMI
Policy, if any, of such assumption or substitution of liability in accordance
with the terms of such PMI Policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such PMI Policy. If such PMI Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement PMI Policy
as provided above.
25
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Owner, claims to the insurer under any
PMI
Policy in a timely fashion in accordance with the terms of such PMI Policy
and,
in this regard, to take such action as shall be necessary to permit recovery
under any PMI Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04, any amounts collected by the Servicer under any PMI Policy shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Section
4.18 Privacy.
In
connection with servicing of Mortgage Loans hereunder, the Servicer shall
comply, and cause its third party service providers to comply, with the Privacy
Requirements, subject to the applicability of such Privacy Requirements to
the
Servicer as the result of the Servicer’s provision of the services under this
Agreement. The foregoing obligation to comply with the Privacy Requirements
may
include the following: (A) the Servicer shall not disclose any Customer
Information to any person or entity, other than to the extent necessary to
carry
out the Servicer’s express obligations under the Agreement, and for no other
purpose. The Servicer shall ensure that each person or entity to whom or to
which the Servicer intends to disclose Customer Information shall, prior to
any
such disclosure of information, agree to: (i) keep confidential any such
Customer Information, (ii) use or disclose such Customer Information only to
the
extent necessary to carry out the Servicer’s express obligations under this
Agreement: (B) the Servicer shall not use Customer Information for any purpose,
including but not limited to the marketing of products or services to, or the
solicitation of business from the Mortgagors. The Servicer may use the Customer
Information to the extent necessary to carry out the Servicer’s express
obligations under the Agreement and as required by state or federal law or
regulation. The Servicer may also use the Customer Information as expressly
permitted by the Owner in writing, to the extent that such express permission
is
in accordance with the Privacy Requirements; (C) the Servicer shall assess,
manage, and control (and cause its service providers to assess, manage and
control) risks relating to the security and confidentiality of Customer
Information, shall implement the standards relating to such risks in the manner
set forth in the FFIEC Interagency Guidelines Establishing Standards for
Safeguarding Customer Information set forth in 12 CFR Parts 30, 208, et al,
and
shall maintain at all times an Information Security Program; (D) without
limiting the scope of the above, the Servicer shall use at least the same
physical and other security measures to protect all Customer Information in
the
Servicer’s possession or control, as the Servicer uses for its own confidential
and proprietary information; and (E) the Servicer shall deliver a privacy notice
during the term of this Agreement if required of the Servicer by law or
regulation in compliance with Privacy Requirements.
26
Section
4.19 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contribution” to a REMIC set forth in Section 860G(d) of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.”
ARTICLE
V
PAYMENTS
TO THE OWNER
Section
5.01 Distributions.
(a) On
each
Remittance Date, the Servicer shall remit to the Owner of record on the
preceding Record Date (i) all amounts credited to the Custodial Account as
of
the close of business on the preceding Determination Date (net of the other
charges against or withdrawals from the Custodial Account pursuant to Section
4.05(ii)-(x)), plus (ii) the aggregate amount of P&I Advances, if any, minus
(iii) any amounts attributable to Principal Prepayments received after the
expiration of related Principal Prepayment Period (except to the extent that,
pursuant to Section 5.03, any funds described in this clause are remitted to
Owner in lieu of advances by the Servicer of its own funds), and minus (iv)
any
amounts that represent early receipts of Monthly Payments due on a Due Date
or
Due Dates subsequent to the Due Date occurring in the month of such Remittance
Date (except to the extent that, pursuant to Section 5.03, any funds described
in this clause are remitted to Owner in lieu of advances by the Servicer of
its
own funds).
(b) Each
remittance pursuant to this Section 5.01 shall be made by wire transfer of
immediately available funds to, or by other means of transmission or transfer
that causes funds to be immediately available in, the account which shall have
been designated by the Owner, for distributions pursuant to Section
5.01(a).
The
Servicer shall ten days prior to the Remittance Date on which the final
distribution of funds to Owner is to be made hereunder, notify Owner of the
pendency of such distribution and such distribution shall be made to
Owner.
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Section
5.02 Statements
to the Owner.
Not
later
than the Business Day immediately following each Remittance Date, the Servicer
shall deliver to the Owner: (a)(i) a monthly remittance statement with respect
to distributions to the Owner under Section 5.01, and (ii) in the event of
a
Pass-Through Transfer for which Servicer continues to service any Mortgage
Loan,
a monthly remittance statement with respect to distributions to such Investor,
each in a form set forth on Exhibit
H
hereto;
and (b)(i) a monthly default report with respect to Mortgage Loans owned by
the
Owner and (b)(ii) in the event of a Pass-Through Transfer for which Servicer
continues to service any Mortgage Loan, a monthly default report with respect
to
Mortgage Loans owned by such Investor.
In
addition, not more than 60 days after the end of each calendar year, upon
receipt of written request by the Owner, the Servicer will furnish to each
Person who was an Owner at any time during such calendar year, a listing of
the
principal balances of the Mortgage Loans outstanding at the end of such calendar
year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
(other than those required to be filed by the Owner) or to the Owner pursuant
to
any applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby.
Section
5.03 P&I
Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Servicer shall from its own funds deposit in the Custodial Account an amount
equal to all Monthly Payments (adjusted to the Mortgage Loan Remittance Rate)
that were due on the related Due Date and that were delinquent at the close
of
business on the related Cutoff Date; provided, however, that to the extent
there
are funds on deposit in the Custodial Account that are not otherwise required
to
be distributed to the Owner on such Remittance Date, the Servicer may remit
such
funds in lieu of making advances of its own funds; and further provided that
any
such funds held for future distribution and so used shall be appropriately
reflected in the Servicer’s records and replaced by the Servicer by deposit into
the Custodial Account on or before each successive Remittance Date to the extent
that funds on deposit in the Custodial Account for the related Remittance Date
(determined without regard to P&I Advances required to be made on such
Remittance Date) shall be less than the aggregate amount required to be
distributed to the Owner pursuant to Section 5.01 on such related Remittance
Date. For purposes of this Section 5.03, any Monthly Payment or portion thereof
deferred pursuant to Section 4.01 shall be considered delinquent until paid.
The
Servicer’s obligation to make P&I Advances as to any Mortgage Loan shall
continue through the later to occur of (a) the last Monthly Payment due prior
to
the payment in full of the Mortgage Loan or (b) the Remittance Date following
acquisition or disposition of title to the related Mortgaged Property through
foreclosure or by delivery of a deed in lieu of foreclosure.
Notwithstanding
the provisions of this Section 5.03, the Servicer shall not be required to
make
any advance of principal and interest if, in the good faith judgment of the
Servicer, such advance of principal and interest will not ultimately be
recoverable from the related Mortgagor, from Liquidation Proceeds or otherwise.
In such event, the Servicer shall deliver to the Owner an Officer’s Certificate
of the Company to the effect that an officer of the Owner has reviewed the
related Mortgage File and has made the reasonable determination that any
additional advances are Nonrecoverable. In the event that Servicer ceases making
P&I advances to the Owner pursuant to this provision, Servicer shall (i)
transfer the Mortgage Loan to an actual/actual remittance type for the remaining
life of the loan and (ii) remit actual collections on such Mortgage Loan on
each
subsequent Remittance Date.
28
ARTICLE
VI
GENERAL
SERVICING PROCEDURE
Section
6.01 Assumption
Agreements.
The
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in each Mortgage or Mortgage Note to the extent permitted by law
and
provided that such enforcement would not impair any recovery under any related
Primary Insurance Policy. Any assumption fee collected by the Servicer for
entering into an assumption agreement shall be treated as Ancillary Income
under
this Agreement.
Section
6.02 Release
of Mortgage Files; Wrongful Satisfaction of Mortgages.
Upon
the
payment in full of any Mortgage Loan, the Servicer will prepare and process
any
required satisfaction or release of the Mortgage and notify the Owner as
provided in Section 5.02.
If
the
Servicer satisfies or releases the lien of a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage, the Servicer,
upon
written demand, shall remit to the Owner the then Assumed Principal Balance
of
the related Mortgage Loan by deposit thereof in the Custodial Account. The
Servicer shall maintain the Fidelity Bond as provided for in Section 4.13
insuring the Servicer against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section
6.03 Servicing
Compensation.
As
consideration for Servicer’s performance of servicing obligations pursuant to
this Agreement and subject to the terms and conditions of this Agreement,
Servicer shall, in accordance with the terms of this Agreement, withdraw from
the Custodial Account, pursuant to Section 4.05, or otherwise retain the
Servicing Compensation With
respect to any calendar month and each Mortgage Loan, an amount equal to
one-twelfth of the product of the Servicing Fee Rate (.375 %) and the Assumed
Principal Balance as of the first day of the related Due Period.
The
Servicer shall be entitled to reimbursement for additional services,
including
(a) express
and other delivery charges, recordation fees and any other reasonable
out-of-pocket expenses incurred by the Servicer with respect to a Mortgage
Loan
to the extent not ordinary to the servicing function (but not including
salaries, rent and other general operating expenses of Servicer normally
classified as overhead);
29
(b) for
preparation and delivery of any special reports, magnetic tapes, disks, or
transmission outside the normal monthly accounting reports; and
(c) to
the
extent not ordinary to the servicing function, any action taken by the Servicer
which the Servicer reasonably determines to be necessary or appropriate in
order
to protect the rights of the Owner (including property preservation) with
respect to any Mortgage Loan, and including Loss Mitigation Activity per Xxxxxx
Mae’s then current compensation guidelines.
Section
6.04 Annual
Statement as to Compliance.
The
Servicer shall deliver to the Owner, on or before March 31 of each year,
beginning March 31, 2004, an Officers’ Certificate stating that (i) a review of
the activities of the Servicer during the preceding calendar year and of the
Servicer’s performance under this Agreement has been made under such officer’s
supervision, and (ii) to the best of such officer’s knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such Servicing Officer
and the nature and status thereof and the action being taken by the Servicer
to
cure such default.
Section
6.05 Annual
Independent Public Accountants’ Servicing Report.
On
or
before March 31 of each year, beginning March 31, 2004, the Servicer, at its
expense, shall cause a firm of independent public accountants that is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Owner to the effect that such firm has examined certain documents and
records relating to the servicing of mortgage loans in the Servicer’s portfolio.
On the basis of this examination, the CPA firm will disclose any exceptions
or
errors relating to the servicing of mortgage loans, as required by paragraph
four (4) of “The Uniform Single Audit Program for Mortgage
Bankers.”
Section
6.06 Owner’s
Right to Examine Servicer Records.
The
Owner
shall have the right, at its expense, upon reasonable notice to the Servicer,
during business hours or at such other times as might be reasonable under
applicable circumstances and on the Servicer’s premises, to examine and audit
any and all of the books, records or other information of the Servicer whether
held by the Servicer or by another on behalf of the Servicer, which relate
to
the performance or observance by the Servicer of the terms, covenants or
conditions of this Agreement, and to discuss such books, records or other
information with an officer or employee of the Servicer who is knowledgeable
about the matters contained therein, upon Owner’s reasonable
request.
Section
6.07 Rate
Adjustment.
As
to
each Adjustable Rate Mortgage Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Customary Servicing Procedures. Servicer shall
establish procedures to monitor the Index in order to ensure that it uses the
appropriate value for the Index in determining an interest rate change. Servicer
shall execute all and deliver all appropriate notices required by (i) the terms
of the Mortgage and Mortgage note, (ii) all applicable law, and (iii) Customary
Servicing Procedures regarding such Mortgage Interest Rate adjustments and
Monthly Payment adjustments. Upon request by the Owner, Servicer shall deliver
to the Owner copies of such adjustment notification, and shall describe the
values and methods used to calculate and implement such adjustments. If Servicer
fails to make a timely and correct Mortgage Interest Rate adjustment or Monthly
Payment adjustment, Servicer shall deposit in the Custodial Account out of
its
own funds any amounts necessary to satisfy any shortage in the Mortgagor’s
Monthly Payment for so long as such shortage continues. In the event the Index,
as specified in the related Mortgage Note, becomes unavailable for any reason,
Servicer shall select an alternative index, in accordance with the terms of
the
Mortgage Note provide written notice to the Owner of such alternative index,
and
such alternative index shall thereafter be the Index for such Mortgage Loan
unless otherwise directed by the Owner to select a specified index in accordance
with the terms of the Mortgage Loan. The Servicer shall use any alternative
index as specified by the Owner so long as such index is in accordance with
the
terms of the Mortgage Note.
30
Section
6.08 Maintenance
of Licenses and Ratings.
The
Servicer shall, at its own cost and expense, obtain and maintain in good
standing without impairment any and all permits, approvals, licenses and
registrations, and cause any of its employees to obtain any and all permits,
approvals, licenses and registrations, that are necessary for the performance
of
the Servicing to be provided by the Servicer pursuant to the terms of this
Agreement.
Section
6.09 Quality
Control.
The
Servicer shall perform quality control and internal audit procedures with
respect to the Servicing in accordance with Applicable Requirements. To the
extent such procedures include any Mortgage Loan serviced by Servicer hereunder,
the Servicer shall share with Owner its quality control, internal audit findings
and any third party reports with respect to Mortgage Loans serviced hereunder,
including the Servicer’s plans for corrective actions should any be required.
Where required, the Servicer shall take prompt corrective action with respect
to
such findings, including those undisputed and final written findings that Owner
may identify through its own internal/third party audit reviews which may
involve third party contractors.
Section
6.10 Compliance
and Performance Reviews.
The
Owner, its officers, employees and agents, including third-party attorneys
and
accountants and auditors, and regulatory officials with regulatory authority
over the Owner may, from time to time, and at their sole cost and expense,
perform reviews, including, but not limited to, onsite visits to ensure that
the
Servicer is conducting its activities and performing its obligations under
this
Agreement in accordance with all Applicable Requirements, including, without
limitation, the Privacy Requirements. The Servicer shall provide, during normal
business hours and upon reasonable advance written notice from the Owner, access
to such documents, books, reports, policies and procedures, personnel and
systems and other support and assistance as the Owner may reasonably request
for
the purpose of carrying out such reviews.
31
Section
6.11 Access
to Documents and Employees.
The
Servicer hereby agrees that it shall, at its sole cost and expense, make
available, or cause to be made available, to the Owner or any person designated
by the Owner, in a timely manner, all documents or materials in the possession
of the Servicer that the Owner is required to supply to any federal or state
regulatory body with respect to the matters contemplated by this Agreement.
In
furtherance of the foregoing, the Servicer shall, at its sole cost and expense,
make available, or cause to be made available, during normal business hours
and
upon reasonable advance written notice from the Owner, to the Owner or any
person designated by the Owner, resources, including, but not limited to, access
to employees, sufficient to respond adequately to any issue or concern raised
by
such federal or state authorities.
Section
6.12 Notices.
The
Servicer shall give prompt written notice to the Owner of (a) any material
action, suit or proceeding instituted by or against the Servicer or any of
its
subsidiaries related to Mortgage Loans in any federal or state court or before
any commission or other regulatory body (federal, state or local, domestic
or
foreign), or any such proceeding to the Servicer’s knowledge threatened against
the Servicer or any of its subsidiaries related to Mortgage Loans in a writing
containing the details thereof, including any putative class action complaint
involving its servicing of mortgage loans; (b) the occurrence of any fact or
circumstance that would constitute an Event of Default hereunder following
the
giving the notice or the expiration of any cure period or both; and (c) any
notice of facts or circumstances that reasonably could be anticipated to result
in a material adverse change in the Servicer’s ability to meet its obligations
under this Agreement.
Section
6.13 Contingency
Plans.
The
Servicer represents and warrants that it has in place a contingency plan that
will enable it to (i) materially perform its servicing obligations within 48
hours in the event its primary location is rendered inoperative as a result
of a
natural or other disaster or emergency, and once the Servicer relocates to
its
backup site, it shall make arrangements to provide continued service as stated
in this Agreement. The Servicer covenants and agrees to (i) test such
contingency plan at least once annually and, upon request of Owner, provide
the
results of such test to the Owner, and (ii) upon request of Owner, provide
the
Owner with copies of its operating procedures in the event that such contingency
plan is put into effect. If Owner determines in its reasonable discretion,
that
such contingency plan is inadequate, the Owner shall have the right to make
reasonable recommendations consistent with those required by its regulators,
and
the Servicer shall take commercially reasonable efforts to implement such
recommendations.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01 Servicer
Shall Provide Access and Information as Reasonably
Required.
The
Servicer shall furnish to the Owner the reports specified on Exhibit
J
and,
upon written request, during the term of this Agreement, such periodic, special
or other reports or information, whether or not provided for herein, as shall
be
necessary, reasonable or appropriate with respect to the purposes of this
Agreement. The Servicer may negotiate with the Owner for a reasonable fee for
providing such report or information, unless (i) the Servicer is required to
supply such report or information pursuant to any other section of this
Agreement, or (ii) the report or information has been requested in connection
with Internal Revenue Service requirements. The Servicer agrees to execute
and
deliver all such instruments as the Owner, from time to time, may reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
32
Section
7.02 Financial
Statements.
The
Servicer understands that, in connection with marketing the Mortgage Loans
and/or the Servicing Rights, the Owner may make available to a prospective
purchaser of the Mortgage Loans a consolidated Statement of Operations of
Servicer for the most recently completed five fiscal years for which such a
statement is available as well as a Consolidated Statement of Condition at
the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Servicer, if it has not already done so, agrees to promptly
furnish to Owner copies of the statements specified above.
The
Servicer also agrees to make available upon reasonable notice and during normal
business hours to any prospective Owner a knowledgeable financial or accounting
officer for the purposes of answering questions respecting recent developments
affecting the Servicer or the financial statements of the Servicer and to permit
upon reasonable notice and during normal business hours any prospective
purchaser to inspect the Servicer’s servicing facilities for the purpose of
satisfying such prospective purchaser that the Servicer has the ability to
service the Mortgage Loans in accordance with this Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01 Indemnification;
Third Party Claims.
The
Servicer shall indemnify and hold harmless the Owner, its directors, officers,
agents, employees, and assignees (each, an “Owner Indemnified Party”) from and
against any costs, damages, expenses (including reasonable attorneys’ fees and
costs, irrespective of whether or not incurred in connection with the defense
of
any actual or threatened action, proceeding, or claim), fines, forfeitures,
injuries, liabilities or losses (“Losses”) suffered or sustained in any way by
any such Person, no matter how or when arising (including in connection with
any
judgment, award, or settlement), in connection with or relating to (i) a breach
by Servicer of any of its representations and warranties contained in Article
III or (ii) a breach by Servicer of any of its covenants and other obligations
contained herein (including any failure to service the Mortgage Loans in
compliance with the terms hereof); provided, however, that Servicer shall not
indemnify Owner for any and all Losses for which Owner is required to indemnify
Servicer hereunder.
The
Owner
shall indemnify and hold the Servicer, its directors, officers, agents,
employees and assignees (each, a “Servicer Indemnified Party”) harmless from and
shall reimburse the Servicer for any Losses suffered or sustained in any way
by
the Servicer, no matter how or when arising (including in connection with any
judgment, award, or settlement), in connection with or relating to (directly
or
indirectly, in whole or in part):
(i) a
breach
by the Owner of any of its representations, warranties and covenants under
this
Agreement, included, without limitation, any representation, warranty and/or
covenant with respect to High Cost Loans or Mortgage Loans subject to
HOEPA;
33
(ii) any
limitation on the liability of the Servicer pursuant to Section 8.02 hereof;
(iii) Servicer’s
compliance with the instructions of Owner or Servicer taking and initiating
any
legal actions with respect to any Mortgage Loans and Mortgaged Properties on
behalf of the Owner in the name of Servicer or an affiliate thereof (in each
case, unless such action or omission is taken with a standard of care in
contravention of any standard of care required under the Agreement and such
contravention is the proximate cause of the Loss);
(iv) any
actions or omissions of any former servicer, owner, sub-servicer or originator
of a Mortgage Loan or Mortgaged Property (or acts or omissions of any other
person or entity) prior to the service transfer date, including without
limitation, any data integrity issue (and any related costs of correcting such
issues; provided,
however,
should
Servicer have actual knowledge of any data integrity error which is likely
to
materially affect the servicing of any Mortgage Loan in any of the loan
portfolios being serviced under this Agreement, Servicer will take reasonable
efforts to correct the error;
(v) for
a
period of one year after the applicable Effective Date, the perpetuation by
Servicer of the acts or omissions of prior servicers; unless
Servicer
knew or reasonably should have known consistent with Customary Servicing
Procedures that such acts or omissions violate Applicable Requirements or the
requirements of Servicer under this Agreement;
(vi) any
outstanding Servicing Advance or P&I Advance as
to
which Servicer is not reimbursed in accordance with Article IV hereof;
(vii) Owner
and/or any prior servicer’s failure to comply with Servicer’s Transfer
Instructions; or
(viii) the
refusal of Owner or any trustee or custodian in possession of an original
Mortgage loan Document to provide Servicer the originals of any Mortgage Loan
Documents within a reasonable amount of time after a request for such documents
has been received in order to allow Servicer sufficient time to process
satisfaction, payoffs and releases.
Notwithstanding
the foregoing, Owner shall not indemnify Servicer for any Losses for which
Servicer is required to indemnify Owner hereunder. The Owner or Servicer
required to indemnify under this Section 8.01 (the “Indemnitor”) shall
immediately (i) notify the Owner or Servicer Indemnified Party if a claim
is made by a third party with respect to this Agreement, any Mortgage Loan
and/or any REO Property, (ii) assume the defense of any such claim and pay
all expenses in connection therewith, including attorneys’ fees, and
(iii) promptly pay, discharge and satisfy any judgment, award, or decree
that may be entered against it or the Indemnified Party in respect of such
claim. Nothing contained herein shall prohibit the Owner Indemnified Party
or
Servicer Indemnified Party, at its expense, from retaining its own counsel
to
assist in any such proceedings or to observe such proceedings; provided
that
neither party shall be obligated to pay or comply with any settlement to which
it has not consented. All amounts required to be paid or reimbursed by the
Indemnitor hereunder shall be paid or reimbursed as and when incurred by the
Owner or Servicer Indemnified Party, upon demand therefore by such Owner
Indemnified Party or Servicer Indemnified Party.
34
Section
8.02 Limitation
on Liability
Neither
the Servicer nor any of the officers, employees or agents of the Servicer shall
be under any liability to the Owner for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement or in
accordance with applicable law, or for errors in judgment made in good faith;
provided, however, that this provision shall not protect the Servicer or any
such person against any breach of warranties or representations made herein,
or
failure to perform the Servicer’s obligations in compliance with the provisions
of this Agreement, or any liability which would otherwise be imposed by reason
of negligence or any breach of the terms and conditions of this Agreement.
The
Servicer and any officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
the Owner respecting any matters arising hereunder. The Servicer shall not
be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its opinion may involve it in any expenses or
liability.
Section
8.03 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
corporation, and shall preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or
the
ability of the Servicer to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
hereunder, shall be the successor of the Servicer hereunder without the
execution or filing of any paper or any further act on the part of either of
the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person shall be an institution (i)
that
is qualified to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac
and (ii) that has a net worth of not less than $15,000,000.
35
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
Event
of
Default, whenever used herein, means any one or more of the following events:
(i) any
failure by either Party to remit to the other Party any payment required to
be
made under the terms of this Agreement that continues unremedied for a period
of
two days after the date upon which written notice of such failure, requiring
the
same to be remedied, shall have been received by the defaulting Party from
the
non-defaulting Party; or
(ii) any
failure on the part of either Party duly to observe or perform in any material
respect any other of the covenants or agreements on the part of such Party,
or a
breach of the representations and warranties of such Party in any material
respect, set forth in this Agreement that continues unremedied for a period
of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been received by the defaulting Party from
the
non-defaulting Party; or
(iii)
a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a trustee in bankruptcy, conservator, receiver or liquidator
in any bankruptcy, reorganization, 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 a Party and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(iv) with
respect to Servicer only, the Servicer ceases to meet the qualifications of
a
Xxxxxx Mae/Xxxxxxx Mac servicer and such approvals are not reinstated within
thirty (30) days; or
(v) failure
by a Party to maintain the material licenses to do business in any jurisdiction
where the Mortgaged Property is located, but only to the extent such
non-qualification materially and adversely affects such Party’s ability to
perform its obligations hereunder.
If
an
Event of Default shall occur, then so long as such Event of Default shall not
have been remedied, the non-defaulting Party may, by notice in writing to the
defaulting Party, in addition to whatever rights the non-defaulting Party may
have at law or equity to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the defaulting Party
under this Agreement; provided, however, if the defaulting Party is the Owner,
the effective date of termination shall be the earlier of ninety (90) days
and
the effective date that a successor shall have assumed the Servicer’s
responsibilities and obligations hereunder in the manner provided in Section
11.01, but not less than thirty (30) days after notice of termination is
delivered to the Owner. Termination of this Agreement by the Servicer shall
not
impair the Owner’s right, title and interest in and to the Mortgage Loans.
Further, if the defaulting party is the Owner, Owner shall be required to pay
all reasonable costs and expenses associated with the transfer of the servicing
function upon termination by Servicer. If the Event of Default involves the
Servicer, on or after the receipt by the Servicer of such written notice subject
to any effective date specified therein, but subject to any applicable right
to
be reimbursed for undisputed outstanding Servicing Advances, P&I Advances,
Servicing Fees, and amounts otherwise due to Servicer under this Agreement,
all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 11.01, it being specifically understood and agreed
that an element of damages to the Owner in the event of termination and transfer
shall include the difference between the Servicing Compensation and the
negotiated fee for servicing charged by the successor servicer, which negotiated
fee with the successor servicer shall be reasonable and customary fee to secure
quality servicing of the portfolio in full compliance with this Agreement.
Any
transfer of the servicing obligations pursuant to this paragraph shall not
release or otherwise reduce, waive, modify or diminish the liabilities of the
defaulting Party to the non-defaulting Party hereunder. Upon written request
from the Owner, the Servicer shall prepare, execute and deliver, any and all
documents and other instruments, place in such successor’s possession all
Mortgage Files, and 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 or assignment of the Mortgage Loans and
related documents, or otherwise, at the sole expense of the defaulting Party;
provided, however, that the Servicer shall not have to pay the cost to complete
the transfer and endorsement or assignment of the Mortgage Loans if it does
not
have record title thereto. The Servicer shall cooperate with the Owner and
such
successor in effecting the termination of the Servicer’s responsibilities and
rights hereunder, including, without limitation, the transfer to such successor
for administration by it of all cash amounts (less any amounts due the Servicer
pursuant to the terms of this Agreement) which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
36
ARTICLE
X
TERMINATION;
RECONSTITUTION
Section
10.01 (
Reserved )
Section
10.02 Termination
Without Cause
(a) The
Owner
may, at its sole option, terminate with respect to some or all of the Mortgage
Loans, any rights the Servicer may have hereunder, without cause, upon sixty
(60) days prior written notice and the payment to
the
Servicer of the purchase price paid by Servicer for the Servicing Rights with
respect to each of the affected Mortgage Loans.
It
is
understood and agreed that the foregoing termination fee, and the “deboarding
fee” included within the definition of Servicing Compensation, are intended to
cover all of Servicer’s costs and expenses associated with the transfer of the
servicing function upon termination pursuant to this Section 10.02(a) for the
transfer responsibilities set forth on Exhibit
I
hereto,
including without limitation, the forwarding by Servicer to any successor
servicer, by overnight mail for the thirty (30) day period immediately following
the transfer and thereafter by respect to the Mortgage Loan or the Mortgaged
Property. The termination fee shall not cover the costs of (1) any MERS transfer
fee, necessitated by or payable in connection with the transfer of the servicing
function, or (2) retrieval and physical delivery of the Mortgage Loan Servicing
Files to the successor servicer by a vendor selected by the Owner. Such costs
shall be payable by the Owner. Notwithstanding anything contained herein to
the
contrary, in the event that there are costs and expenses associated with such
transfer of the servicing function in addition to those costs and expenses
associated with the Servicer responsibilities set forth in Exhibit
I
and with
the Owner responsibilities set forth in this Section 10.02, the parties agree
to
negotiate in good faith to allocate responsibility for such costs and expenses
in a fair and reasonable manner.
37
Upon
such
termination, any right of the Servicer to the Servicing Compensation with
respect to the affected Mortgage Loans shall terminate on the Effective
Termination Date (as defined below), except as otherwise provided herein. Any
such notice of termination shall be in writing and delivered to the Servicer
by
Owner as provided in Section 11.07 of this Agreement. Owner shall not adversely
select the Mortgage Loans with respect to which this Agreement is terminated
such that the costs and burdens of servicing pursuant to this Agreement are
materially increased.
Termination
pursuant to this Section 10.02(a) shall be effective on the date on which the
Servicer transfers all responsibilities, rights, duties and obligations under
this Agreement to the successor appointed pursuant to Section 11.01 and sixty
(60) days from the date of notice of termination (for purposes of this Section
10.02(a) only, the “Effective Termination Date.”).
(b) Following
twelve (12) months after the applicable Effective Date, Servicer may terminate,
at its sole option, the Agreement with respect to some or all of the Mortgage
Loans or REO Property, without cause. Such termination shall not become
effective until the earlier of: (i) one hundred twenty (120) days after the
date
on which notice of termination is provided by the Servicer in writing and
delivered to the Owner by registered mail, or (ii) a successor shall have
assumed the Servicer’s responsibilities and obligations hereunder in the manner
provided in Section 11.01. In the event the Servicer terminates the Agreement
without cause with respect to some or all of the Mortgage Loans, the Owner
shall
not be required to pay to the Servicer the applicable deboarding fee included
within the definition of Servicing Compensation and Servicer shall pay all
its
costs and expenses of transfer; provided, however, that the Servicer shall
be
entitled to reimbursement of the Servicing Advances in the same timeframe as
if
Servicer had not terminated this Agreement.
(c) If
Owner
or its employees appear on or are members of any organization that appears
on
any government list, including, but not limited to, the Control List prepared
by
the Office of Foreign Assets Control (“OFAC”) of the Department of the Treasury,
then Servicer may take all measures authorized under applicable law and may,
by
giving written notice thereof to Consultant, terminate this Agreement upon
the
date specified in the notice, which date may be the date of the
notice.
Section
10.03 Removal
of Mortgage Loans From Inclusion Under This Agreement
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, the Owner may effect either:
(1) one
or
more Whole Loan Transfers;
38
(2) one
or
more Pass-Through Transfers;
provided,
however, that no Mortgage Loan shall be reconstituted more than four (4)
times.
The
Servicer and the Owner acknowledge and agree that the Servicer is not obligated
hereunder to act as servicer in any Reconstitution that is inconsistent with
the
provisions of this Section 10.03 . The Owner is not obligated hereunder to
offer
the Servicer the opportunity to act as servicer in any Reconstitution; provided
however that in the event the Owner does not offer such opportunity
to the
Servicer the Owner will pay to the Servicer an amount equal to the purchase
price paid by the Servicer for the Servicing Rights with respect to each of
the
affected Mortgage Loans.
The
Servicer shall reasonably cooperate with the Owner in connection with any Whole
Loan Transfer or Pass-Through Transfer contemplated by the Owner pursuant to
this Section 10.03, provided, however, that under no circumstances and in no
event shall such cooperation include any act of the Servicer or any event
affecting the Servicer that would materially increase the Servicer’s liabilities
or obligations beyond those liabilities and obligations contained in this
Agreement (except as otherwise set forth in this Section 10.03).
In
connection with any Reconstitution in which the Owner and the Servicer have
agreed that the Servicer shall act as the servicer in the Reconstitution, the
Owner shall deliver any agreement (the “Reconstitution Agreement”) or other
document related to the Whole Loan Transfer or Pass Through Transfer to the
Servicer at least 10 Business Days prior to such transfer; the Servicer’s
refusal to cooperate with Owner based on late delivery of such documents shall
result in no liability to the Servicer. Such Reconstitution Agreement
may,
in
the Owner’s discretion, contain contractual provisions not set forth in this
Agreement, including, but not limited to, (i) customary certificate payment
delays, (ii) servicer advance requirements for the advancing of delinquent
scheduled payments of principal and interest through liquidation (unless deemed
non-recoverable),
(iii)
servicer obligations to pay compensating interest for prepayment interest
shortfalls (to the extent of the monthly servicing fee payable to the servicer),
(iv) representations and warranties (dated as of the Reconstitution Date) of
the
Servicer conforming in all material respects to the representations and
warranties in this Agreement, and (v) such provisions with regard to servicing
responsibilities, investor reporting, segregation and deposit of principal
and
interest payments, custody of the Mortgage Loans, and other provisions that
conform to secondary market standards for mortgage-backed securities backed
by
mortgage loans similar to the Mortgage Loans or as may be required by one or
more Rating Agencies. The
Servicer shall promptly review such Reconstitution Agreement and/or related
documents, and provided that such Reconstitution Agreement contains servicing
provisions substantially similar to those herein or otherwise acceptable to
the
Servicer in its sole discretion, shall execute such Reconstitution Agreement
and/or related documents. The Servicer’s refusal to execute any Reconstitution
Agreement or related documents may be based on any provision that materially
(a)
increases the liability of the Servicer and/or (b) affects Servicer’s
profitability from that contemplated herein. The Owner hereby agrees to
reimburse the Servicer for reasonable out-of-pocket expenses incurred by the
Servicer that relate to reviewing and commenting on the Reconstitution Agreement
for such Whole Loan Transfer or Pass-Through Transfer. Any cooperation from
the
Servicer in connection with any Whole Loan Transfer or Pass-Through Transfer
contemplated by this Section shall include, upon request by the Owner, delivery
of a legal opinion relating to the Servicer substantially similar to that
attached hereto as Exhibit
L
and the
furnishing of customary information for use in an offering document for such
Pass-Through Transfer, for Pass-Through Transfers of this type, relating to
the
Servicer and its servicing practices and portfolio, which in form and substance
is reasonably acceptable to the Servicer (the
“Servicer Information”).
The
Servicer shall indemnify the Owner, each Affiliate of the Owner participating
in
any such Reconstitution and each Person who controls the Owner or such
Affiliate, and their respective officers and directors, and hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that each of them may sustain arising directly from
Servicer Information; provided, however, that any numerical information
regarding Servicer, including delinquency statistics, appearing in table format
or otherwise, is confirmed by an independent accounting firm selected by
Servicer at the Owner’s expense. The Owner shall indemnify the Servicer and each
Person who controls the Servicer or such Affiliate and hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that each of them may sustain in any way related to
any
Reconstitution other than any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that each of them may sustain as a result of the
Servicer Information.
39
If
requested by the Owner in connection with any Reconstitution, the Servicer
and
the Owner shall execute a letter agreement setting forth the indemnification
obligations set forth in this Section 10.03. In the event that the Servicer
is
not the master servicer, servicer or sub-servicer with respect to a
Reconstitution, any and all reasonable costs, fees and expenses incurred by
Servicer in connection with the foregoing shall be reimbursed by Owner after
receipt of an invoice therefor. Any execution of a subservicing agreement or
pooling and servicing agreement by the Servicer shall be conditioned on the
Servicer receiving servicing compensation that is reasonably acceptable to
Servicer based on providing reasonably equivalent economic value to the total
Servicing Compensation under this Agreement. Notwithstanding any provision
to
the contrary in this Agreement, in the event that the Servicer is the master
servicer, servicer or sub-servicer with respect to a Reconstitution, the Owner
agrees that in such Reconstitution any servicing performance termination
triggers shall be approved by the Servicer in its reasonable discretion;
provided, that in the event that the Servicer does not approve any servicing
performance termination triggers, the Owner shall, with respect to the
Reconstitution, have the right to terminate the Servicer hereunder (a “Servicing
Performance Trigger Termination”) and designate a successor servicer to act as
master servicer, servicer or sub-servicer upon payment to the Servicer of the
purchase price paid by the Servicer for the Servicing Rights with respect to
each of the affected Mortgage Loans .
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass-Through Transfer shall be subject to this Agreement and shall continue
to
be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
40
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Servicer.
Prior
to
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Section 8.03, 9.01, or 10.02, the Owner shall (i) succeed to and
assume all of the Servicer’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement prior to the termination of Servicer’s
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Owner may make such arrangements
for
the compensation of such successor out of payments on Mortgage Loans as it
and
such successor shall agree. The Servicer shall discharge its duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence that it is obligated to exercise under this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Owner an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. No termination
of
the Servicer or this Agreement shall affect any claims that the Owner may have
against the Servicer or that Servicer may have against Owner arising prior
to
any such termination or resignation.
The
Servicer shall timely deliver to its successor the funds in the Custodial
Account and the Escrow Account (less any amounts to which the Servicer is
entitled pursuant to the terms of this Agreement) and all Mortgage Loan
Servicing Files and related documents and statements held by it hereunder and
the Servicer shall account for all funds. The Servicer shall execute and deliver
such instruments and do such other things all as may reasonably be required
to
more fully and definitely vest and confirm in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of the Servicer,
including without limitation, the requirements set forth in Exhibit
I
hereto.
Servicer and Owner shall be liable for the costs and expenses associated with
the transfer of the servicing function as set forth throughout this
Agreement.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify by mail
the Owner of such appointment.
Section
11.02 No
Waiver.
No
delay
or omission by either party in exercising any right or remedy hereunder shall
operate as a waiver or estoppel thereof or of any other right or remedy, and
no
single or partial exercise thereof shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. The failure at any time
or
times hereafter to require strict performance by either party of any of the
provisions, terms and conditions contained in this Agreement, or any other
agreement, document or instrument now or hereafter executed by the parties,
shall not waive, affect, or diminish any right of the other party hereafter
to
demand strict compliance or performance therewith and with respect to any
provisions, terms and conditions contained in such agreements, documents and
instruments at any other time, and waiver of any default shall not waive or
affect any other default, whether prior or subsequent thereto, and whether
of
the same or a different type. None of the warranties, conditions, provisions,
and terms contained in this Agreement or any other agreement, document or
instrument now or hereafter executed by the parties shall be deemed to have
been
waived by any act or knowledge of a party, its agents, officers or employees,
unless the other party is so advised by written instrument signed by an elected
officer of said party and is directed to the other party specifying each
waiver.
41
Section
11.03 Amendment.
This
Agreement may be amended only by written agreement signed by the Servicer and
Owner hereunder.
Section
11.04 No
Solicitations.
Servicer
agrees that it will not take any action or permit or cause any action to be
taken by Servicer, any of its agents or affiliates, or by any independent
contractors on Servicer’s behalf, personally, by telephone, the internet, mail,
or otherwise, to solicit any Mortgagor either to refinance such Mortgagor’s
Mortgage Loan, in whole or in part, or for any other product or service without
the prior written consent of the Owner. It is understood and agreed that all
rights and benefits relating to the solicitation of any Mortgagor to refinance
such Mortgagor’s Mortgage Loan and the attendant rights, title and interest in
and to the list of such Mortgagor and data relating to such Mortgagor’s Mortgage
Loans shall be retained by Owner pursuant hereto and Servicer shall take no
action to undermine these rights and benefits. Notwithstanding the foregoing,
it
is understood and agreed that promotions undertaken by or on behalf of the
Servicer or any affiliate of the Servicer which are directed to the general
public at large, or segments thereof, provided that no segment shall consist
primarily of the Mortgage Loans, including, without limitation, mass mailing,
newspaper, radio and television advertisements, website ads, monthly account
statements or “VRU” recorded communications or from serving the refinancing
needs of a Mortgagor who, without solicitation, contacts the Servicer in
connection with the refinance of such Mortgage or Mortgage Loan shall not
constitute solicitation under this section. Servicer shall use its best efforts
to prevent the sale of the name of any Mortgagor to any person.
Section
11.05 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided.
Section
11.06 Governing
Law.
This
Agreement shall be construed in accordance with the laws of the Commonwealth
of
Pennsylvania, except to the extent preempted by Federal law but without regard
to principles of conflicts of laws, and the obligations, rights and remedies
of
the parties hereunder shall be determined in accordance with such laws.
42
Section
11.07 Notices.
Any
communications provided for or permitted hereunder shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given if (a) personally delivered, (b) mailed by registered mail, postage
prepaid, return receipt requested, and received by the addressee, (c) sent
by
express courier delivery service and received by the addressee, or (d)
transmitted by telex, telecopy or telegraph and confirmed by a writing delivered
by means of (a), (b) or (c), to: (i) in the case of the Servicer, 000 Xxxxxx
Xxxx, Xxxxxxx, XX 00000, ATTN: Executive Vice President of National Loan
Administration or such other address as may hereafter be furnished to the Owner
in writing by the Servicer, with a copy to the Servicer General Counsel at
the
same address and (ii) in the case of the Owner, Xxx Xxxxxxxxx Xxxxx, #000,
Xxxx
Xxxxxx, Xxxxxxxxxx, 00000.
Section
11.08 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement.
Any part, provision, representation or warranty of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section
11.09 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Servicer shall
be rendered as an independent contractor and not as agent for the Owner.
Section
11.10 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which shall be deemed to be an
original. Such counterparts shall constitute one and the same
agreement.
Section
11.11 Successors
and Assigns.
The
Servicer may not assign this Agreement or delegate a material portion of its
duties hereunder (except to any affiliate or subsidiary of the Servicer) to
any
transferee servicer without the written consent of Owner, which consent shall
not be unreasonably withheld or delayed. Any transferee servicer (including
any
affiliate or subsidiary of the Servicer) must meet the eligibility requirements
for a successor servicer pursuant to Section 8.03 hereof. This Agreement shall
inure to the benefit of and be binding upon the Servicer and the Owner and
their
respective successors and assigns.
43
Section
11.12 Time
of Payment.
Unless
otherwise specifically set forth in this Agreement, any amount due to Owner
or
Servicer under this Agreement will be due and payable thirty (30) days following
receipt by the paying Party of the invoice from the other Party. All amounts
will be payable by wire transfer, in accordance with payment instructions
provided from time to time.
Any
amount not paid when due as set forth in this Agreement will bear interest
until
paid at a rate of interest equal to the prime rate established from time to
time
by The Wall Street Journal, “Money Rates.” If any portion of an amount due to a
Party under this Agreement is subject to a bona fide dispute between the
Parties, the other Party will pay to that Party on the date such amount is
due
all amounts not disputed in good faith.
Section
11.13 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs, Clauses and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs, Clauses, and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
11.14 Entire
Agreement.
Each
of
the Servicer and the Owner acknowledge that no representations, agreements
or
promises were made to it by the other party or any of its employees other than
those representations, agreements or promises specifically contained herein.
This Agreement between the Servicer and the Owner set forth the entire
understanding between the parties hereto with respect to the matters set forth
herein and shall be binding upon all successors of both parties.
44
Section
11.15 Force
Majeure.
The
Servicer and the Owner shall be excused for the period of any delay in the
performance of any obligations under this Agreement when prevented from
performing such obligations by cause or causes beyond their reasonable control,
including, without limitation, civil commotion, war invasions, rebellion,
hostilities, military or usurped power, sabotage, pestilence, riots fire or
other casualty or acts of God.
[SIGNATURES
CONTAINED ON THE FOLLOWING PAGE]
45
IN
WITNESS WHEREOF, the
Servicer and the Owner have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above
written.
|
GMAC
MORTGAGE CORPORATION,
Servicer
|
||
| |
|
|
| By: | ||
|
Name:
|
|
|
|
Title:
|
|
|
|
|
||
|
RWT
HOLDINGS, INC.,
Owner
|
||
| |
|
|
| By: | ||
|
Name:
|
|
|
|
Title:
|
|
|
|
|
||
46
| COMMONWEALTH OF __________ | ) | |
| ) SS. | ||
| COUNTY OF __________________ | ) |
On
the
______ day of ___________ before me, a Notary Public in and for said State,
personally appeared ________________________ known to me to be
______________________ of GMAC Mortgage Corporation, that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said association, and acknowledged to me that such association executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my official seal the day
and year in this certificate first above written.
| ________________________________________ | ||
| Notary Public | ||
| My Commission expires ___________________________ |
| STATE OF _________________ | ) | |
| ) SS. | ||
| COUNTY OF _______________ | ) |
On
the
______ day of ___________ before me, a Notary Public in and for said State,
personally appeared ________________________ known to me to be a
______________________ of RWT Holdings, Inc., that executed the within
instrument and also known to me to be the person who executed it on behalf
of
RWT Holdings, Inc., and acknowledged to me that RWT Holdings, Inc. executed
the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my official seal the day
and year in this certificate first above written.
| ________________________________________ | ||
| Notary Public | ||
| My Commission expires ___________________________ |
47
EXHIBIT
A
ELIGIBILITY
CRITERIA FOR RESIDENTIAL MORTGAGE LOANS
EXHIBIT
B
[RESERVED]
EXHIBIT
C
MORTGAGE
FILE AND MORTGAGE LOAN SERVICING FILE CONTENTS
EXHIBIT
D
TRANSFER
INSTRUCTIONS
EXHIBIT
E
FORM
OF LIMITED CORPORATE RESOLUTION
RESOLUTION
OF THE BOARD OF DIRECTORS OF RWT HOLDINGS, INC.
APPOINTMENT
OF CERTAIN OFFICERS
FOR
PURPOSES OF EXECUTING CERTAIN DOCUMENTS
WHEREAS,
RWT Holdings, Inc. (the “Company”) desires to execute documents necessary to
perfect the release of mortgage loans and the initiation of foreclosure actions
(the “Releases” and “Foreclosures”) regarding certain Mortgage Loans serviced by
GMAC Mortgage Corporation on behalf of RWT Holdings, Inc., and that these
Releases and Foreclosures may be best and most efficiently accomplished by
the
appointment of certain officers of the Company with special power to execute
the
individual documents to be recorded on behalf of the Company.
NOW,
THEREFORE, BE IT RESOLVED, that the persons named on Exhibit A attached hereto
be, and each of them hereby are appointed as officers of the Company to be
effective as of the first day of _________, 2003 and terminating upon GMAC
Mortgage Corporation’s receipt of the last recorded assignment, as indicated
below with full power to execute on behalf of the Company, by actual or
facsimile signature, all documents in connection with the Releases and
Foreclosures; and
FURTHER
RESOLVED, that the Board is informed and aware that the persons named on Exhibit
A attached hereto are employees of GMAC Mortgage Corporation, and that they
may
from time to time be named as officers by other corporations for purposes
similar to that set forth in these resolutions; and
FURTHER
RESOLVED, that the foregoing appointments and grants of power and authority
are
revocable upon completion of the project related to the Releases and
Foreclosures; and the authority of the persons so appointed is specifically
and
strictly limited to the execution of the specific documents referred to above
for the purposes herein authorized; and
FURTHER
RESOLVED, that the foregoing appointments and grants of power and authority
shall not be deemed to (i) entitle any of the persons so appointed to receive
any compensation or other benefits from the Company or any of its affiliates
or
(ii) create any employer-employee relationship between the Company or any of
its
affiliates any such persons; and
FURTHER
RESOLVED, that the Secretary and each Assistant Secretary (other than any
Assistant Secretary appointed by these resolutions) of the Company are hereby
authorized and directed from time to time to certify copies of these
resolutions, the incumbency of the officers appointed pursuant to these
resolutions, and the actual facsimile signatures of said officers.
1
CERTIFICATE
OF RESOLUTION
I,
THE
UNDERSIGNED, Secretary of RWT Holdings, Inc., a ____________, having its
principal place of business at Xxx Xxxxxxxxx Xxxxx, #000, Xxxx Xxxxxx,
Xxxxxxxxxx, 00000, hereby certify that the attached is a true copy of a certain
resolution duly adopted by the Board of Directors of RWT Holdings, Inc. in
accordance with its Bylaws at, and recorded in the minutes of, a meeting of
the
Board duly held on ___________, 2003 as taken from the minutes of the meeting
and compared by me with the original of the resolution recorded in the minutes.
I further certify that the resolution is in full force and effect and has not
been revoked.
IN
WITNESS WHEREOF, I set my hand and caused the seal of _____________ to be
affixed hereto on this _____ day of ____________________, 2003.
|
Name, title |
Subscribed
and sworn to before me this ____ day of ____________, 2003
|
|
|||
| My commission expires: ___________________ |
2
Exhibit
A
|
Name
|
Title
to Which Appointed
|
|
|
Xxxxxxx
X. Xxxxxxx
|
Vice
President
|
|
|
Xxxxxx
X. Xxxxxxx
|
Vice
President
|
|
|
Xxxxx
Xxxxx
|
Vice
President
|
|
|
Xxxxxx
Xxxxxxx
|
Vice
President
|
|
|
Xxxxxx
Katella
|
Vice
President
|
|
|
Xxxxx
Xxxxxxxxxx
|
Vice
President
|
|
|
Xxx
Xxxxxxxxxx
|
Vice
President
|
|
|
Xxxxxx
Xxxxxxxx
|
Vice
President
|
|
|
Xxxxx
Xxxxx
|
Vice
President
|
|
|
Xxxxxxx
Xxxxxx
|
Vice
President
|
|
|
Xxxxx
Xxxxxx
|
Vice
President
|
|
|
Xxxxx
Xxxxx
|
Vice
President
|
|
|
Xxxxxxxxx
Foresmann
|
Assistant
Vice President
|
|
|
Xxxx
Xxxx
|
Assistant
Vice President
|
|
|
Hilari
Spring
|
Assistant
Vice President
|
|
|
Xxxxxx
Kwaitanowski
|
Assistant
Vice President
|
|
|
Xxxxxx
XxXxxxx
|
Assistant
Vice President
|
|
|
Xxxx
Xxxxxx
|
Assistant
Vice President
|
|
|
Xxxx
Xxxxxx
|
Assistant
Vice President
|
|
|
Xxxxxxx
Xxxxxxxxxx
|
Assistant
Vice President
|
|
|
Xxxxxx
Xxxxxxxxx
|
Assistant
Vice President
|
|
|
Xxx
Xxxxxxx
|
Assistant
Secretary
|
|
|
Assistant
Secretary
|
||
|
Xxxxx
Xxxxxxx
|
Assistant
Secretary
|
3
EXHIBIT
F
CUSTODIAL
ACCOUNT LETTER AGREEMENT
|
To:
|
___________________________
|
|
___________________________
|
|
|
___________________________
|
As
“Servicer” under the Loan Servicing Agreement, dated as of _____________,
______________ (the “Agreement”), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 4.04 of
the
Agreement, to be designated as “GMAC Mortgage Corporation, in trust for the
Owner -______________ Mortgage Loans - Group No. ______ and various Mortgagors.”
All deposits in the account shall be subject to withdrawal there from by
order
signed by the Servicer. This letter is submitted to you in duplicate. Please
execute and return one original to us.
|
GMAC
Mortgage Corporation
|
||
| |
|
|
| By | ||
|
|
||
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation to the extent available
under applicable law.
|
(name of Depository) |
||
| |
|
|
| By | ||
|
|
||
EXHIBIT
G
ESCROW
ACCOUNT LETTER AGREEMENT
|
To:
|
___________________________
|
|
___________________________
|
|
|
___________________________
|
As
“Servicer” under the Loan Servicing Agreement, dated as of _____________,
__________ Mortgage Loans (the “Agreement”), we hereby authorize and request you
to certify that an account exists titled “GMAC Mortgage Corporation, in trust
for the Owner as indicated on GMAC Mortgage Corporation’s records and various
mortgagors.” All deposits in the account shall be subject to withdrawal there
from by order signed by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
|
GMAC
Mortgage Corporation
|
||
| |
|
|
| By | ||
|
|
||
The
undersigned, as “Depository”, hereby certifies that the above described account
has been established under Account Number ___________________, at the office
of
the Depository indicated above, and agrees to honor withdrawals on such account
as provided above. The amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation to the extent available
under applicable law.
|
(name of Depository) |
||
| |
|
|
| By: | ||
|
|
||
EXHIBIT
H
FORM
OF MONTHLY REMITTANCE STATEMENT
EXHIBIT
I
SERVICER’S
RESPONSIBILITIES UPON TRANSFER OF SERVICING
With
respect to a transfer of servicing responsibilities to a successor servicer,
the
obligations of the Servicer under Section 11.01 shall consist of the
following:
|
·
|
furnishing
to the successor electronic records in
an industry standard format reasonably acceptable to the successor
reflecting
the status of payments, balances and other pertinent information
with
respect to the Mortgage Loans as of such date mutually agreed upon
by
Owner and Servicer,
including, but not limited to: (i) master file; (ii) escrow file;
(iii)
payee file, which includes comprehensive tax and insurance information
identifying payee, payee address, next payment due date, next amount
payable and policy number/parcel number; (iv) automatic payment draft
file, which includes loan identifying information; (v) Adjustable
Rate
Mortgage Loan master file; (vi) Adjustable Rate Mortgage Loan history;
and
(vii) any other information reasonably requested by Owner
to be furnished to the successor.
|
|
·
|
delivering
written notice to: (1) all hazard, flood and earthquake insurance
companies and/or their agents, all taxing authorities, flood determination
companies and tax servicers and/or their agents, of the transfer
of
servicing, and
(2) any
and all
mortgage insurance companies providing any Primary Mortgage Insurance
Policy of the change in insured’s name on each such policy to Owner’s name
in care of the successor.
|
With
respect to Mortgage Loans secured by Mortgaged Properties located in Federal
Emergency Management Agency designated flood areas, as of the date of transfer
flood insurance policies will be in full force and effect in the amounts
required by Owner under Applicable Requirements.
As
of the
date of transfer all Mortgaged Properties will be insured against fire and
have
extended coverage insurance in the amounts required by Xxxxxx Xxx all insurance
premiums on such insurance policies will have been paid in a timely manner.
Servicer will notify Owner of any fire losses on the Mortgaged Properties where
Servicer’s estimate of loss is materially greater than the net recovery from the
fire insurance carrier and fire losses on the Mortgaged Properties as to which
there is a pending coinsurance claim.
|
·
|
transferring
all
tax service contracts to the
successor and providing the
successor with
an electronic file identifying (i) tax type, payment frequency, payee
code, tax amount last paid, next due date, parcel number, and (ii)
each
such tax contract, if any, by contract number subject to Owner’s payment
obligations under Section 2.04 hereof.
|
|
·
|
delivering
the “Goodbye Letter” in accordance with applicable law to each related
Mortgagor.
|
|
·
|
providing
the successor with (a) copies of all assumption agreements generated
by or
on behalf of the Owner within the sixty (60) days preceding such
Servicing
Transfer Date and (b) a list of all assumptions in
process.
|
|
·
|
furnishing
electronic copies of all accounting reports relating to the Mortgage
Loan
as of the related Servicing Transfer Date including, but not limited
to, a
trial balance and reports of collections, delinquencies, prepayments
in
full, curtailments, escrow payments, escrow balances, partial payments,
partial payment balances and other like information with respect
to each
Mortgage Loan.
|
EXHIBIT
J
LIST
OF REPORTS
EXHIBIT
K
FORM
OF CUSTODIAL AGREEMENT
EXHIBIT
L
RECONSTITUTION
FORM OPINION
[Date]
To
the
Addresses identified on Schedule A attached hereto
Re:
Ladies
and Gentlemen:
I
am
associate counsel of GMAC Mortgage Corporation, a Pennsylvania corporation
(the
“Company”),
and
have represented the Company in connection with the preparation, execution
and
delivery of the following documents:
In
this
connection, I have examined, or caused to be examined, originals, or copies
certified to my satisfaction, of the [________________] (collectively, the
“Agreements”),
and
such other documents, certificates and instruments which I have deemed necessary
or appropriate in connection with this opinion. As to matters of fact, I have
examined and relied upon representations, warranties and covenants of parties
to
the above documents contained therein and, where I have deemed appropriate,
representations or certifications of officers of parties to the Agreements
or
public officials. In rendering this opinion letter, I have assumed (i) the
authenticity of all documents submitted to me as originals, the genuineness
of
all signatures, the legal capacity of natural persons and the conformity to
the
originals of all documents submitted to me as copies, (ii) with respect to
parties other than the Company, the due authorization, execution and delivery
of
such documents, and the necessary entity power with respect thereto, and the
enforceability of such documents, (iii) the conformity of the Mortgage
Loans and the documents set forth in Section [__________] of the Pooling and
Servicing Agreement to the requirements of the Agreements and (iv) that
there is not and will not be any other agreement that modifies or supplements
the agreements expressed in the Agreements.
In
rendering this opinion letter, I do not express any opinion concerning any
law
other than the law of the Commonwealth of Pennsylvania and the federal law
of
the United States, and I do not express any opinion concerning the application
of the “doing business” laws. To the extent that any of the matters upon which I
am opining herein are governed by laws (“Other
Laws”)
other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion
from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
My
opinions set forth below are subject to the qualification that enforceability
of
each of the respective obligations of the parties under the Agreements is
subject to (i) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, (ii) the
availability of equitable remedies, (iii) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the rights of creditors, (iv) implied or express covenants of
good faith, and (v) limitations of public policy under applicable
securities laws as to rights of indemnity and contribution thereunder. My
opinions are subject to the further qualification that enforceability of each
of
the parties’ respective obligations under the Agreements is subject to the
effect of certain laws, regulations and judicial or other decisions upon the
availability and enforceability of the remedies of specific performance and
self
help. Capitalized terms used herein, but not defined herein, shall have the
meanings assigned to them in the Agreements.
1
Based
upon the foregoing, but subject to the assumptions, exceptions, qualifications
and limitations herein expressed, I am of the opinion that:
1. The
Company is duly incorporated and validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania and has the
requisite power to own its properties, to conduct its business as presently
conducted by it and to enter into and perform its obligations under the
respective Agreements to which it is a party.
2. Each
of
the Agreements to which it is a party has been duly authorized, executed and
delivered by the Company, and, assuming the authorization, execution and
delivery by the other parties thereto (other than the Company), is the legal,
valid and binding agreement of the Company, enforceable against it in accordance
with its terms.
The
opinions set forth herein are intended solely for the benefit of the addressees
hereof in connection with the transactions contemplated herein and shall not
be
relied upon by any other person or for any other purpose without my prior
written consent. Except for reproductions for inclusion in transcripts of the
documentation relating to the transactions contemplated herein, this opinion
may
not be copied or otherwise reproduced or quoted from, in whole or in part,
without my prior written consent.
| Very truly yours, | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
| Title: | Corporate Counsel, | |
| GMAC Mortgage Corporation | ||
2
EXECUTION
REGULATION
AB COMPLIANCE ADDENDUM
Dated
as of January 1, 2006
between
GMAC
MORTGAGE, LLC (successor in interest to GMAC MORTGAGE
CORPORATION)
and
RWT
HOLDINGS, INC.
to
the
LOAN
SERVICING
AGREEMENT,
Dated
as of February 1, 2004
REGULATION
AB COMPLIANCE ADDENDUM (the “Reg AB Addendum”), dated as of January 1, 2006, by
and between RWT Holdings, Inc. (the “Owner”) and GMAC Mortgage, LLC, a Delaware
limited liability company, successor in interest to GMAC Mortgage Corporation,
(the “Servicer”), to that certain Loan Servicing Agreement, dated as of February
1, 2004, by and between the Owner and GMAC Mortgage Corporation (the “Existing
Agreement”). The Servicer agrees to be bound by the Existing Agreement as if it
was a party thereto on the date the same was executed. The Owner accepts the
conversion of the Servicer from a Pennsylvania corporation to a Delaware limited
liability company.
WITNESSETH
WHEREAS,
the Owner and the Servicer have agreed to, subject to the terms and conditions
of this Reg AB Addendum, adopt an addendum to the Existing Agreement to reflect
the intention of the parties to comply with Regulation AB. The Existing
Agreement shall be referred to herein as “the Agreement”.
NOW,
THEREFORE, in consideration of the mutual promises and mutual obligations set
forth here, the Owner and the Servicer hereby agree as follows:
ARTICLE
I
DEFINED
TERMS
Capitalized
terms used but not otherwise defined herein shall have the meanings assigned
to
them in the Existing Agreement. The Existing Agreement is hereby amended by
adding the following definitions in their proper alphabetical
order:
Commission:
The United States Securities and Exchange Commission.
Servicer
Information: As defined in Section 2.07(a).
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Master
Servicer: With respect to a Securitization Transaction, the “master servicer”,
if any, identified by the Owner and identified in related transaction
documents.
Reconstitution:
Any Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: An agreement or agreements entered into by the Servicer and the
Owner
and/or certain third parties in connection with a Reconstitution with respect
to
any or all of the Mortgage Loans serviced under the Agreement.
Regulation
AB: Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
1
of 13
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or other transfer
of
some or all of the Mortgage Loans directly or indirectly to an issuing entity
in
connection with an issuance of publicly offered or privately placed, rated
or
unrated mortgage-backed securities or (2) an issuance of publicly offered or
privately placed, rated or unrated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As defined in Section 2.03(c).
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
as such may be amended from time to time.
Subcontractor:
Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any Person that services Mortgage Loans on behalf of the Servicer or any
Subservicer and is responsible for the performance (whether directly or through
Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Servicer under the Agreement
or any Reconstitution Agreement that are identified in Item 1122(d) of
Regulation AB.
Whole
Loan Transfer: Any sale or transfer of some or all of the Mortgage Loans, other
than a Securitization Transaction.
ARTICLE
II
COMPLIANCE
WITH REGULATION AB
Section
2.01. Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that the purpose of Article II of this
Addendum is to facilitate compliance by the Owner and any Depositor with the
provisions of Regulation AB and related rules and regulations of the
Commission.
Neither
the Owner nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Servicer acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Owner, any Master Servicer or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Servicer shall cooperate fully with
the
Owner and any Master Servicer to deliver to the Owner (including any of its
assignees or designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Owner, any Master Servicer or any
Depositor to permit the Owner, such Master Servicer or such Depositor to comply
with the provisions of Regulation AB, together with such disclosures relating
to
the Servicer or any Subservicer and the Mortgage Loans, or the servicing of
the
Mortgage Loans, reasonably believed by the Owner or any Depositor to be
necessary in order to effect such compliance.
2
of 13
The
Owner
(including any of its assignees or designees) shall cooperate with the Servicer
by providing timely notice of requests for information under these provisions
and by reasonably limiting such requests to information required, in the Owner’s
reasonable judgment, to comply with Regulation AB.
The
Owner
and the Servicer agree that the provisions set forth in Article II shall only
apply to Securitization Transactions that close on or after January 1, 2006.
However, delivery by the Servicer of an Attestation under Section 2.05 of this
Reg AB Addendum shall be deemed to comply with the requirement under Section
6.05 of the Existing Agreement to deliver an Annual Independent Public
Accountants’ Servicing Report.
In
the
event that (i) the Servicer does not reasonably believe that certain information
requested under this Article II is required to be disclosed pursuant to
Regulation AB, and (ii) the Servicer has not provided such information for
any
of its own securitizations, the Owner shall pay all reasonable documented costs
incurred by the Servicer in connection with the preparation and delivery of
such
information and the Servicer shall promptly deliver such information after
expiration of a reasonable period of time for establishing the necessary systems
and procedures to produce such information.
Section
2.02. Additional
Representations and Warranties of the Servicer.
(a) The
Servicer hereby represents to the Owner, any Master Servicer and any Depositor,
as of the date on which information is first provided to the Owner, any Master
Servicer or any Depositor under Section 2.03 that, except as disclosed in
writing to the Owner, such Master Servicer or such Depositor prior to such
date:
(i)
the
Servicer is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Servicer; (ii)
the
Servicer has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as servicer
has been
disclosed or reported by the Servicer; (iv) no material
changes to the Servicer’s policies or procedures with respect to the servicing
function it will perform under the Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans
have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Servicer’s financial
condition that could have a material adverse effect on the performance by
the
Servicer of its servicing obligations under the Agreement or any Reconstitution
Agreement;
(vi)
there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Servicer or any Subservicer ;
and
(vii) there are no affiliations, relationships or transactions relating to
the
Servicer or any Subservicer with respect to any Securitization Transaction
and
any party thereto identified by the related Depositor of a type described in
Item 1119 of Regulation AB.
3
of 13
(b) If
so
requested by the Owner, any Master Servicer or any Depositor on any date
following the
date
on which information is first provided to the Owner or any Depositor under
Section 2.03,
the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Section
2.03. Information
to Be Provided by the Servicer.
In
connection with any Securitization Transaction the Servicer shall (i) make
best
efforts within five Business Days, but no less than ten Business Days, following
request by the Owner or any Depositor, provide to the Owner and such Depositor,
to the extent not previously provided, (or cause each Subservicer to provide),
in writing and in form and substance reasonably satisfactory to the Owner and
such Depositor, the information and materials specified in paragraphs (a),
(b),
(c) and (f) of this Section, and (ii) as promptly as practicable following
notice to or discovery by the Servicer, provide to the Owner and any Depositor
(in writing and in form and substance reasonably satisfactory to the Owner
and
such Depositor) the information specified in paragraph (d) of this
Section.
(a) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Item 1108, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under the Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Owner or any Depositor,
to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
4
of 13
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Owner or any Depositor may reasonably request for
the
purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under the
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Servicer
of its servicing obligations under the Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
5
of 13
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts;
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience;
(I) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer;
(J) a
description of any affiliation or relationship between the Servicer and any
of
the following parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1) the
sponsor
(2) the
Depositor
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) for
the
purpose of satisfying reporting obligations under the Exchange Act with respect
to any class of asset-backed securities, the Servicer shall (or shall cause
each
Subservicer to) (i) provide prompt notice to the Owner, any Master Servicer
and
any Depositor in writing of (A) any material litigation or governmental
proceedings pending against the Servicer or any Subservicer, (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Servicer or any Subservicer and any
of
the parties specified in clause (D) of paragraph (a) of this Section (and any
other parties identified in writing by the requesting party) with respect to
any
Securitization Transaction, (C) any Event of Default under the terms of the
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Servicer, and (E) the Servicer’s entry
into an agreement with a Subservicer to perform or assist in the performance
of
any of the Servicer’s obligations under the Agreement or any Reconstitution
Agreement and (ii) provide to the Owner and any Depositor a description of
such
proceedings, affiliations or relationships.
6
of 13
(c) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under the Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, any Master Servicer and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner and any Depositor
of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Owner and such Depositor, all information
reasonably requested by the Owner or any Depositor in order to comply with
reporting obligations under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities.
(d) In
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of the Agreement or this Addendum not
later
than ten days prior to the deadline for the filing of any distribution report
on
Form 10-D in respect of any Securitization Transaction that includes any of
the
Mortgage Loans serviced by the Servicer or any Subservicer, the Servicer or
such
Subservicer, as applicable, shall (but only to the extent the Servicer or such
Subservicer has knowledge), provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice of the occurrence
of any of the following events along with all information, data and materials
related thereto as may be required to be included in the related distribution
report on Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i)
any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a) (11) of Regulation AB); and
(ii) information
regarding any material pool asset changes (such as, additions substitutions
or
repurchases (Item 1121 (a) (14) of Regulation AB).
(e)
The
Servicer shall provide to the Owner, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports, and such other
information related to the Owner or any Subservicer or the Owner or the Owner’s
or such Subservicer’s performance hereunder.
Section
2.04. Servicer
Compliance Statement.
On
or
before March 15 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Owner, any Depositor and any Master Servicer a statement of
compliance addressed to the Owner ,such Depositor and such Master Servicer
and
signed by an authorized officer of the Servicer, to the effect that (i) a review
of the Servicer’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under the Agreement and
any
applicable Reconstitution Agreement during such period has been made under
such
officer’s supervision, and (ii) to the best of such officers’ knowledge, based
on such review, the Servicer has fulfilled all of its obligations under the
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
7
of 13
Section
2.05. Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 15 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Owner ,any Depositor and any Master Servicer a report (in form and
substance reasonably satisfactory to the Owner, such Depositor and such Master
Servicer) regarding the Servicer’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required under
Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Owner, such Depositor, and such Master Servicer
and signed by an authorized officer of the Servicer, and shall address each
of
the applicable Servicing Criteria specified on of Exhibit B hereto (wherein
“Investor” shall mean the Master Servicer on behalf of the trust);
(ii) deliver
to the Owner, any Depositor and any Master Servicer a report of a registered
public accounting firm reasonably acceptable to the Owner, such Depositor and
such Master Servicer that attests to, and reports on, the assessment of
compliance made by the Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant
to
Section 2.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Owner, any Depositor
and any Master Servicer an assessment of compliance and accountants’ attestation
as and when provided in paragraphs (a) and (b) of this Section; and
(iv) deliver,
and cause each Subservicer and Subcontractor described in Clause (iii) to
deliver, to the Owner, any Depositor, any Master Servicer and any other Person
that will be responsible for signing the certification (a “Sarbanes
Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a certification
in the form attached hereto as Exhibit A.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the
Commission.
8
of 13
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
2.05(a)(iii) shall address each of the applicable Servicing Criteria specified
on Exhibit B hereto or, in the case of a Subservicer subsequently appointed
as
such, on or prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Section 2.05(a)(iii) need not address
any elements of the Servicing Criteria other than those specified by the
Servicer pursuant to Section 2.06.
Section
2.06. Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under the Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under the Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) It
shall
not be necessary for the Servicer to seek the consent of the Owner, any
Depositor or any Master Servicer to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with
the
provisions of this Section and with Sections 2.02, 2.03(c) and (e), (f) and
(g),
2.04, 2.05 and 2.07 of this Addendum to the same extent as if such Subservicer
were the Servicer, and to provide the information required with respect to
such
Subservicer under Section 2.03(d) of this Addendum. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Owner
and
any Depositor any servicer compliance statement required to be delivered by
such
Subservicer under Section 2.04, any assessment of compliance and attestation
and
other certification required to be delivered by such Subservicer under Section
2.05 and any certification required to be delivered to the Person that will
be
responsible for signing the Sarbanes Certification under Section 2.05 as and
when required to be delivered.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Owner, any
Depositor or any Master Servicer to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Owner, any Depositor (or
any
designee of the Depositor, such as a Master Servicer or administrator) a written
description (in form and substance satisfactory to the Owner and such Depositor)
of the role and function of each Subcontractor utilized by the Servicer or
any
Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which
(if any) of such Subcontractors are “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, and (iii) which elements
of
the Servicing Criteria will be addressed in assessments of compliance provided
by each Subcontractor identified pursuant to clause (ii) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 2.05 and 2.07 of this Addendum to
the
same extent as if such Subcontractor were the Servicer. The Servicer shall
be
responsible for obtaining from each Subcontractor and delivering to the Owner
and any Depositor any assessment of compliance and attestation and the other
certifications required to be delivered by such Subcontractor under Section
2.05, in each case as and when required to be delivered.
9
of 13
Section
2.07. Indemnification;
Remedies.
(a) The
Servicer
shall
indemnify the Owner, each affiliate of the Owner, and each of the following
parties participating
in a Securitization Transaction (and each shall be an “Owner Indemnified
Party”): each
sponsor and issuing entity; each Person (including, but not limited to, any
Master Servicer if applicable) responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect
to
such Securitization Transaction, or for execution of a certification pursuant
to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial Owner,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees, agents and
affiliates of each of the foregoing and of the Depositor, and shall hold each
of
them harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, data, accountants’ letter or other
material
provided
under
this Article II by
or on
behalf of the Servicer,
or provided under this Article II by or on behalf of any Subservicer or
Subcontractor (collectively, the “Servicer Information”),
or (B)
the omission or alleged omission to state in the Servicer Information a material
fact required to be stated in the Servicer Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
breach by the Servicer of its obligations under this Article II, including
particularly any failure by the Servicer, any Subservicer or any Subcontractor
to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article II, including any failure
by
the Servicer to identify pursuant to Section 2.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;
10
of 13
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Servicer of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date;
provided,
however, that in no event shall the Servicer be liable for any consequential,
indirect or punitive damages, whatsoever, whether in contract, tort (including
negligence and strict liability) or an other legal or equitable principle;
provided, however, that such limitation shall not be applicable with respect
to
third party claims made against the Owner.
(b)
The
Owner
shall indemnify the Servicer, each Person who controls the Servicer (within
the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act),
and the respective present and former directors, officers, employees, agents
and
affiliates of each of the foregoing (each, a “Servicer Indemnified Party), and
shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that nay of them may
sustain arising out of or based upon any untrue statement contained or alleged
to be contained in any filing with the Commission or the omission or alleged
omission to state in any filing with the Commission a material fact required
to
be stated or necessary to be stated in order to make the statement therein,
in
the light of the circumstances under which they were made, not misleading,
in
each case to the extent, but only to the extent, that such untrue statement,
alleged untrue statement, omission, or alleged omission arose out of or was
based upon any information or statement, other than the Servicer Information,
in
a filing with the Commission.
(c)
(i)
The
indemnification provided for in Sections 2.07(a) and (b) shall survive the
termination of this Reg AB Addendum or any party to this Reg AB
Addendum.
(ii) If the indemnification provided for in Section 2.07(a) is unavailable
or
insufficient to hold harmless an Owner Indemnified Party, then the Servicer
agrees that is shall contribute to the amount paid or payable by such Owner
Indemnified Party as a result of any claims, losses, damages or liabilities
incurred by such Indemnified Party in such proportion as is appropriate to
reflect the relative fault of such Owner Indemnified Party on the one hand
and
the Servicer on the other.
(iii) In the case of any failure of performance described in clause (a)(ii)
of
this Section, the Servicer shall promptly reimburse the Owner, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Servicer, any
Subservicer or any Xxxxxxxxxxxxx.
00
xx 00
(x)
(x) Any
failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article II, including any failure
to
identify pursuant to Section 2.06(b) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, or any
breach by the Servicer of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Servicer of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date,
shall immediately and automatically, without notice or grace period, constitute
an Event of Default with respect to the Servicer under the Agreement and any
applicable Reconstitution Agreement, and shall entitle the Owner, or any
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer as servicer under the Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in
the Agreement or any applicable Reconstitution Agreement to the contrary) of
any
compensation to the Servicer (and if the Servicer is servicing any of the
Mortgage Loans in a Securitization Transaction, appoint a successor servicer
reasonably acceptable to any Master Servicer for such Securitization
Transaction); provided
that to
the extent that any provision of the Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Servicer as servicer, such provision
shall be given effect. Neither the Owner, any Master Servicer nor any Depositor
shall be entitled to terminate the rights and obligations of the Servicer
pursuant to this subparagraph (d)(i) if a failure of the Servicer to identify
a
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB was attributable solely to the role or functions
of
such Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(ii) The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a Master Servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer and
the
transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Owner or any
Depositor may have under other provisions of the Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an
action for damages, specific performance or injunctive relief.
2.08.
Interpretation.
To
the
extent any provision or requirement of this Reg AB Addendum conflicts with
a
provision or requirement of the Agreement, the terms of this Addendum shall
govern and shall be deemed to supercede the conflicting provision or requirement
of the Agreement.
12
of 13
2.09
Third
Party Beneficiary
For
purposes of this Article II, the Master Servicer shall be considered a
third-party beneficiary of the Reg AB Addendum, entitled to all the rights
and
benefits hereof as if it were a direct party to this Reg AB
Addendum.
2.10
Counterparts.
This
Reg
AB may be executed in one or more counterparts and by different parties hereto
on separate counterparts, and each of which, when so executed shall constitute
one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
| RWT HOLDINGS, INC.. | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
| Title: | ||
| GMAC MORTGAGE , LLC | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
| Title: | ||
13
of 13
EXHIBIT
A
FORM
OF ANNUAL CERTIFICATION
Re: The
[ ]
agreement dated as
of [ ],
200[
] (the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
SERVICER], certify to [the Owner], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Servicer Servicing Information”);
(2) Based
on
my knowledge, the Servicer 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 Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Servicer 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
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
A-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer and Subcontractor pursuant
to
the Agreement, have been provided to the [Depositor] [Master Servicer]. Any
material instances of noncompliance described in such reports have been
disclosed to the [Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date: _________________________
By:
Name:
________________________________
Title:
________________________________
A-2
EXHIBIT
B
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
ü
|
||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
ü
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
ü
|
||
|
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.
|
ü
|
||
B-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
ü
|
||
|
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.
|
ü
|
||
|
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.
|
ü
|
||
|
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.
|
ü
|
||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
ü
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan 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 mortgage loan documents.
|
ü
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
ü
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
ü
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
ü
|
B-2
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
ü
|
||
|
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.
|
ü
|
||
|
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.
|
ü
|
||
|
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.
|
ü
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
ü
|
||
|
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.
|
B-3
GMAC
- SEQUOIA TO TRUSTEE
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
For
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of July 27, 2007,
is
entered into among Sequoia Residential Funding, Inc. (the “Assignor”), GMAC
Mortgage, LLC (successor in interest to GMAC Mortgage Corporation), as the
servicer (the “Servicer”), and HSBC Bank USA, National Association (“HSBC Bank”)
as Trustee under a Pooling and Servicing Agreement dated as of July 1, 2007
(the
“Pooling and Servicing Agreement”), among the Assignor, as Depositor, HSBC Bank
(in such Trustee capacity, the “Assignee”) and Xxxxx Fargo Bank, N. A., as
Master Servicer and Securities Administrator.
RECITALS
WHEREAS,
RWT Holdings, Inc. (“RWT Holdings”) and the Servicer have entered into a certain
Loan Servicing Agreement, dated as of February 1, 2004 (the “Loan Servicing
Agreement”), as modified by the Regulation AB Compliance Addendum dated as of
January 1, 2006 (the “Reg AB Compliance Addendum,” and together with the Loan
Servicing Agreement, the “Loan Servicing Agreement”), and the Servicer is
currently servicing certain mortgage loans (the “Mortgage Loans”) under the Loan
Servicing Agreement; and
WHEREAS,
RWT has previously sold, assigned and transferred all of its right, title and
interest in certain of the Mortgage Loans (the “Specified Mortgage Loans”) which
are listed on the mortgage loan schedule attached as Exhibit
I
hereto
(the “Specified Mortgage Loan Schedule”) and its rights under the Loan Servicing
Agreement with respect to the Specified Mortgage Loans to Assignor;
and
WHEREAS,
the Assignor has agreed to sell, assign and transfer to Assignee all of its
right, title and interest in the Specified Mortgage Loans and its right under
the Loan Servicing Agreement with respect to the Specified Mortgage Loans;
and
WHEREAS,
the parties hereto have agreed that the Specified Mortgage Loans shall be
subject to the terms of this Assignment.
NOW,
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
1. Assignment
and Assumption.
(a) Effective
on and as of the date hereof, the Assignor hereby pledges, assigns and transfers
to Assignee all of its right, title and interest in the Specified Mortgage
Loans
as to servicing and all of its rights (but none of the Owner’s obligations)
provided under the Loan Servicing Agreement to the extent relating to the
Specified Mortgage Loans, the Assignee hereby accepts such assignment from
the
Assignor, and the Servicer hereby acknowledges such assignment and
assumption.
4
(b) Effective
on and as of the date hereof, the Assignor represents and warrants to the
Assignee that the Assignor has not taken any action that would serve to impair
or encumber the Assignee’s interest in the Specified Mortgage Loans since the
date of the Assignor’s acquisition of the Specified Mortgage Loans.
2. Recognition
of the Assignee.
From
and
after the date hereof, the Servicer shall recognize the Assignee as the holder
of the rights and benefits of the Owner with respect to the Specified Mortgage
Loans and the Servicer will service the Specified Mortgage Loans for the
Assignee as if the Assignee and the Servicer had entered into a separate
servicing agreement for the servicing of the Specified Mortgage Loans in the
form of the Loan Servicing Agreement (as modified by Appendix A hereto) (the
“Successor LSA”) with the Assignee as the Owner thereunder, which Successor LSA
is incorporated in and made a part of this Assignment. It is the intention
of
the parties hereto that the Successor LSA will be treated as a separate and
distinct servicing agreement between the parties hereto to the extent of the
Specified Mortgage Loans and shall be binding upon and for the benefit of the
respective successors and assigns of the parties hereto.
|
3.
|
Assignor’s
Continuing Rights and Responsibilities.
|
Notwithstanding
Sections 1 and 2 above, the parties hereto agree that Assignor rather than
Assignee shall have the ongoing rights and responsibilities of the Owner under
the following sections of the Loan Servicing Agreement:
|
Section
|
Matter
|
|
|
4.01,
3rd
|
(a) Standards
of Servicer.
|
|
|
4.02
|
(b)
Liquidation of Mortgage Loans; Servicing Advances and
Foreclosure.
|
|
|
4.14,
1st,
2nd
and
6th’s
|
(c)
Title, Management and Disposition of REO Property.
|
|
|
6.06
|
(d) Owner’s
Right to Examine Servicer Records.
|
|
|
7.01
|
(e) The
Servicer Shall Provide Access and Information as Reasonably
Required.
|
|
|
7.02,
2nd
|
(f)
Financial Statements.
|
|
|
8.01
|
(g) Indemnification;
Third-Party Claims.
|
|
|
2.07
of Reg AB Compliance Addendum
|
(h)
Indemnification; Remedies.
|
|
|
8.02
|
(i) Limitation
on Liability.
|
|
|
11.04
|
(j) No
Solicitations.
|
|
|
11.11
|
(k) Successor
and Assigns.
|
5
In
addition, the Servicer agrees to furnish to Assignor and the Master Servicer
copies of reports, notices, statements and other communications required to
be
delivered by the Servicer pursuant to any of the sections of the Loan Servicing
Agreement referred to above and under the following sections, at the times
therein specified:
|
Section
|
||
|
4.09
|
(a)
Transfer of Accounts.
|
|
|
4.14,
5th
and
6th’s
|
(b) Title,
Management and Disposition of REO Property.
|
|
|
5.02
|
(c) Statements
to Owner.
|
|
|
5.03
|
(d) P&I
Advances by the Servicer.
|
|
|
2.03
of Reg AB Compliance Addendum
|
(e)
Information to Be Provided by the Servicer.
|
|
|
2.04
of Reg AB Compliance Addendum
|
(f)
Servicer Compliance Statement
|
|
|
2.05
of Reg AB Compliance Addendum
|
(g)
Report on Assessment of Compliance and
Attestation
|
|
4.
|
Successor
LSA.
|
The
Successor LSA includes the Loan Servicing Agreement as modified by Appendix
A
hereto and is made a part of this Assignment.
|
5.
|
Representations
and Warranties.
|
(a) Each
of
the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
6
(b) Each
of
the parties hereto represents and warrants that this Assignment has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of
creditors’ rights generally and by general equitable principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
|
6.
|
Continuing
Effect.
|
Except
as
contemplated hereby, the Loan Servicing Agreement shall remain in full force
and
effect in accordance with its terms.
|
7.
|
Governing
Law.
|
This
Assignment and the rights and obligations hereunder shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania.
|
8.
|
Notices.
|
Any
notices or other communications permitted or required under the Loan Servicing
Agreement to be made to the Assignor and the Assignee shall be made in
accordance with the terms of the Loan Servicing Agreement and shall be sent
to
the Assignor and the Assignee as follows:
Sequoia
Residential Funding, Inc.
Xxx
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxxx, XX 00000
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Corporate Trust & Loan Agency
or
to
such other address as may hereafter be furnished by the Assignor or the Assignee
to the other parties in accordance with the provisions of the Loan Servicing
Agreement.
|
9.
|
Counterparts.
|
This
Assignment may be executed in counterparts, each of which when so executed
shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
7
|
10.
|
Definitions.
|
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Loan Servicing Agreement.
|
11.
|
Master
Servicer.
|
The
Servicer hereby acknowledges that the Assignee has appointed Xxxxx Fargo Bank,
N. A. (the “Master Servicer”) to act as master servicer and securities
administrator under the Pooling and Servicing Agreement and hereby agrees to
treat all inquiries, instructions, authorizations and other communications
from
the Master Servicer as if the same had been received from the Trustee. The
Master Servicer, acting on behalf of the Assignee, shall have the rights of
the
Assignee as the Owner under the Successor LSA to enforce the obligations of
the
Servicer thereunder. Any notices or other communications permitted or required
under the Loan Servicing Agreement to be made to the Assignee shall be made
in
accordance with the terms of the Loan Servicing Agreement and shall be sent
to
the Master Servicer at the following address:
Xxxxx
Fargo Bank, N. A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
(or,
for
overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000)
Attention:
Sequoia Mortgage Trust 2007-3
or
to
such other address as may hereafter be furnished by the Master Servicer to
Servicer. Any such notices or other communications permitted or required under
the Loan Servicing Agreement may be delivered in electronic format unless manual
signature is required in which case a hard copy of such report or communication
shall be required.
The
Servicer further acknowledges that the Assignor has engaged the Master Servicer
to provide certain default administration and that the Master Servicer, acting
as agent of the Assignor, may exercise any of the rights of the Owner retained
by the Assignor in Section 3 above.
The
Servicer shall make all distributions under the Successor LSA, as they relate
to
the Specified Mortgage Loans, to the Master Servicer by wire transfer of
immediately funds to:
Xxxxx
Fargo Bank, NA
San
Francisco, CA
ABA#
000-000-000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
53164600
[remainder
of page intentionally left blank]
8
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
|
SEQUOIA
RESIDENTIAL FUNDING, INC.
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
| SERVICER: | ||
| GMAC MORTGAGE, LLC | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
9
EXHIBIT
I
APPENDIX
A
LOAN
SERVICING AGREEMENT
1. The
definition of “Business Day” is hereby revised to read as follows:
|
“Business
Day”: Any day other than (i) a Saturday or Sunday, (ii) a day on which
banking or savings and loan institutions in the Commonwealth of
Pennsylvania or the States of California, Iowa, Connecticut, Maryland
or
Minnesota are authorized or obligated by law or executive order to
be
closed, or (iii) a day that is a company holiday at the location
of the
main offices of either Owner or
Servicer.
|
|
2.
|
Section
4.04, first sentence of the last paragraph is revised to read as
follows:
|
“The
Servicer may invest the funds in the Custodial Account in Eligible Investments
designated in the name of the Servicer or its nominee, and held in trust for
HSBC Bank USA, National Association, as Trustee, under the Pooling and Servicing
Agreement dated May 1, 2007, which shall mature not later than the Business
Day
next preceding the Remittance Date next following the date of such investment
(except that (i) any investment in the institution with which the Custodial
Account is maintained may mature on such Remittance Date and (ii) any other
investment may mature on such Remittance Date if the Servicer shall advance
funds on such Remittance Date, pending receipt thereof to the extent necessary
to make distributions to the Owner) and shall not be sold or disposed of prior
to maturity.”
|
3.
|
Section
5.02 of the Loan Servicing Agreement is hereby revised by replacing
the
first paragraph thereof with the
following:
|
“Not
later than the tenth (10th)
calendar day of each month, the Servicer shall deliver to the Owner a monthly
remittance statement in the current reporting format mutually agreed to by
the
Servicer and the Master Servicer and containing the data in Exhibit 1 attached
hereto or other mutually agreeable data. In addition, and if readily available,
the Servicer agrees to provide to the Master Servicer any other data with
respect to the Mortgage Loans as may reasonably be required to enable the Master
Servicer to perform its obligations under the Pooling and Servicing Agreement.
The Servicer may negotiate with the Owner for a reasonable fee, payable to
the
Servicer by the Owner, for providing such other data, unless (i) the Servicer
is
required to supply such report or information pursuant to any other section
of
this Agreement, or (ii) the report or information has been requested in
connection with Internal Revenue Service requirements.”
|
4.
|
Section
9.01 of the Loan Servicing Agreement is hereby revised by adding
a
sentence at the end to read as
follows:
|
“Notwithstanding
anything to the contrary in this Section or any other Section of this Agreement,
in the event the defaulting party is the Owner, the Servicer shall not be
entitled to terminate the rights of the Owner hereunder or to terminate the
Servicer’s obligation to service the Mortgage Loans in accordance with this
Agreement.”
|
5.
|
Section
10.02(b) of the Loan Servicing Agreement is hereby deleted in its
entirety.
|
|
6.
|
Notwithstanding
anything to the contrary in the Loan Servicing Agreement, any Custodial
Account established by the Servicer pursuant to Section 4.04 of the
Loan
Servicing Agreement shall qualify as an Eligible Account as defined
in the
Pooling and Servicing Agreement.
|
|
7.
|
Notwithstanding
anything to the contrary in the Loan Servicing Agreement, the definition
of Eligible Investments is hereby deleted in its entirety and replaced
by
the definition of Permitted Investments from the Pooling and Servicing
Agreement.
|
|
8.
|
Section
2.03(b) of the Reg AB Compliance Addendum is hereby deleted in its
entirety and replaced with the following (changes are in
italics):
|
“ (b) for
the
purpose of satisfying reporting obligations under the Exchange Act with respect
to any class of asset-backed securities, the Servicer shall (or shall cause
each
Subservicer to) (i) provide prompt notice to the Owner, any Master Servicer
and
any Depositor in writing of (A) any material litigation or governmental
proceedings involving
the
Servicer or any Subservicer, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Servicer
or any Subservicer and any of the parties specified in clause (J)
of
paragraph (a) of this Section (and any other parties identified in writing
by
the requesting party) with respect to any Securitization Transaction, (C) any
Event of Default under the terms of the Agreement or any Reconstitution
Agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Servicer, and (E) the Servicer’s entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Servicer’s
obligations under the Agreement or any Reconstitution Agreement and (ii) provide
to the Owner and any Depositor a description of such proceedings, affiliations
or relationships.”
9. The
second sentence of Section 2.06(b) of the Reg AB Compliance Addendum is deleted
and replaced in its entirety by the following (changes in italics):
“The
Servicer shall promptly upon request provide to the Owner, any Depositor (or
any
designee of the Depositor, such as a Master Servicer or administrator) a written
description (in form and substance satisfactory to the Owner,
the
Master Servicer
and such
Depositor) of the role and function of each Subcontractor utilized by the
Servicer or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause
(ii)
of this paragraph.”
EXHIBIT
1
|
FORM
OF MONTHLY REPORTS
|
Standard
Loan Level File Layout - Master Servicing
|
|
|
|
||||
|
|
|
|
||||||
|
|
|
|
||||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
||||
|
Each
file requires the following fields:
|
|
|
|
|||||
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 20 digits
|
20
|
||||
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
||||
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
||||
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
||||
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
||||
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
||||
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
||||
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
||||
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
||||
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
||||
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
||||
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
||||
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
||||
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
||||
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
||||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
Plus
the following applicable fields:
|
|
|
|
|||||
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle —
only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer —
only
applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle —
only
applicable for Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer —
only
applicable for Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
||||
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
||||
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
||||
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
BREACH_FLAG
|
Flag
to indicate if the repurchase of a loan is due to a breach of
Representations and Warranties
|
Y=Breach
N=NO
Breach
Let
blank if N/A
|
1
|
Exhibit
: Standard
File Layout - Delinquency Reporting
*The
column/header names in bold
are
the minimum fields Xxxxx Fargo must receive from every
Servicer
|
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 ($)
|
|||
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
MOTION_FOR_RELIEF_DATE
|
The
date the Motion for Relief was filed
|
10
|
MM/DD/YYYY
|
|||
|
FRCLSR_BID_AMT
|
The
foreclosure sale bid amount
|
11
|
No
commas(,) or dollar signs ($)
|
|||
|
FRCLSR_SALE_TYPE
|
The
foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
|
|
||||
|
REO_PROCEEDS
|
The
net proceeds from the sale of the REO property.
|
No
commas(,) or dollar signs ($)
|
||||
|
BPO_DATE
|
The
date the BPO was done.
|
|
||||
|
CURRENT_FICO
|
The
current FICO score
|
|
||||
|
HAZARD_CLAIM_FILED_DATE
|
The
date the Hazard Claim was filed with the Hazard Insurance
Company.
|
10
|
MM/DD/YYYY
|
|||
|
HAZARD_CLAIM_AMT
|
The
amount of the Hazard Insurance Claim filed.
|
11
|
No
commas(,) or dollar signs ($)
|
|||
|
HAZARD_CLAIM_PAID_DATE
|
The
date the Hazard Insurance Company disbursed the claim
payment.
|
10
|
MM/DD/YYYY
|
|||
|
HAZARD_CLAIM_PAID_AMT
|
The
amount the Hazard Insurance Company paid on the claim.
|
11
|
No
commas(,) or dollar signs ($)
|
|||
|
ACTION_CODE
|
Indicates
loan status
|
Number
|
||||
|
NOD_DATE
|
|
MM/DD/YYYY
|
||||
|
NOI_DATE
|
|
MM/DD/YYYY
|
||||
|
ACTUAL_PAYMENT_PLAN_START_DATE
|
|
MM/DD/YYYY
|
||||
|
ACTUAL_PAYMENT_
PLAN_END_DATE
|
|
|
||||
|
ACTUAL_REO_START_DATE
|
|
MM/DD/YYYY
|
||||
|
REO_SALES_PRICE
|
|
Number
|
||||
|
REALIZED_LOSS/GAIN
|
As
defined in the Servicing Agreement
|
Number
|
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
: 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.
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 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 and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney Letter
of
Proceeds Breakdown.
*
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
3A: 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:
|
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
|
||
|
________________
|
(18b)
HUD Part B
|
||||
|
(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
|
||||||
