SERVICING AGREEMENT between BAYVIEW FINANCIAL, L.P. as Owner and BAYVIEW LOAN SERVICING, LLC as Servicer Dated as of October 1, 2006
EXECUTION
between
BAYVIEW
FINANCIAL, L.P.
as
Owner
and
BAYVIEW
LOAN SERVICING, LLC
as
Servicer
Dated
as
of October 1, 2006
TABLE
OF
CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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1
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1.1
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Certain
Defined Terms
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1
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1.2
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Other
Definitional Provisions
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5
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ARTICLE
II AGREEMENTS OF THE SERVICER
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5
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2.1
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General.
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5
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2.2
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Collection
of Mortgage Loan Payments
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6
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2.3
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Procedure
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6
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2.4
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Other
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12
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2.5
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Accounting,
Remittances and Trustee Reporting
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14
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2.6
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Delinquency
Control
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15
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2.7
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Foreclosure
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16
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2.8
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REO
Property
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17
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2.9
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Books
and Records
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19
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2.10
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Advance
of Monthly Payments
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19
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2.11
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Prepayment
Interest Shortfalls
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20
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ARTICLE
III AGREEMENTS OF BAYVIEW
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21
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3.1
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Documentation
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21
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ARTICLE
IV COMPENSATION
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21
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4.1
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Servicing
Fee
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21
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4.2
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Solicitation
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22
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ARTICLE
V TERM AND TERMINATION
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22
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5.1
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Term
and Notice
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22
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5.2
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Termination
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22
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5.3
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[Reserved]
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23
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5.4
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Reimbursement
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23
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5.5
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Accounting
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24
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ARTICLE
VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF BAYVIEW
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24
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6.1
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Assistance
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24
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6.2
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Notice
of Breach
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24
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6.3
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Prior
Servicing
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24
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6.4
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Authority
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24
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ARTICLE
VII REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER
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24
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7.1
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Notice
of Breach
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24
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7.2
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Agency
Approvals
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25
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7.3
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Authority
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25
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i
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ARTICLE
VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION; SURVIVAL
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25
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8.1
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Independence
of Parties
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25
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8.2
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Indemnification
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25
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8.3
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Indemnification
by Bayview
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26
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8.4
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Procedure
for Indemnification
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26
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8.5
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Survival
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27
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ARTICLE
IX COMPLIANCE WITH REGULATION AB
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27
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9.1
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Intent
of the Parties; Reasonableness
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27
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9.2
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Additional
Representations and Warranties of the Servicer
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28
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9.3
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Information
to be Provided by the Servicer
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28
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9.4
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Servicer
Compliance Statement
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31
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9.5
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Report
on Assessment of Compliance and Attestation
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31
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9.6
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Indemnification;
Remedies
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32
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ARTICLE
X MISCELLANEOUS
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34
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10.1
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Changes
in Practices
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34
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10.2
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Assignment
of Servicing; Use of Subservicers and Subcontractors
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34
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10.3
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Rights
of Master Servicer and Trustee
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37
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10.4
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Prior
Agreements
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37
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10.5
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Entire
Agreement
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37
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10.6
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Invalidity
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37
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10.7
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Effect
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37
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10.8
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Applicable
Law
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37
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10.9
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Notices
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37
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10.10
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Waivers
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38
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10.11
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Binding
Effect
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38
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10.12
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Headings
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38
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EXHIBITS
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EXHIBIT
I
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Loans
to be Serviced
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EXHIBIT
II
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Investor
Reports
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Default
Reports
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Realized
Loss Reports
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EXHIBIT
III
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Commercial
Loans
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EXHIBIT
IV
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Bayview
Servicing Guidelines
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EXHIBIT
V
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Pooling
and Servicing Agreement
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EXHIBIT
VI
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Form
of Annual Certification
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EXHIBIT
VII
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Servicing
Criteria to be Addressed in Assessment of
Compliance
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ii
This
SERVICING AGREEMENT is made as of the 1st day of October, 2006 by and between
Bayview Financial, L.P. (“Bayview”), and Bayview Loan Servicing, LLC (herein,
the “Servicer”).
RECITALS:
WHEREAS,
the Mortgage Loans have been transferred to U.S. Bank National Association,
as
trustee (the “Trustee”) in connection with a securitization transaction pursuant
to a pooling and servicing agreement dated as of October 1, 2006 (the “Pooling
and Servicing Agreement”), among Bayview Financial Securities Company, LLC, as
depositor (the “Depositor”), the Trustee and Xxxxx Fargo Bank, N.A., as master
servicer (the “Master Servicer;” such term shall include its successors and
assigns);
WHEREAS,
each of Bayview and the Servicer desires that the Servicer perform certain
servicing functions on behalf of the Certificateholders, with respect to the
Mortgage Loans pursuant to this Agreement; and
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
1.1 Certain
Defined Terms.
For
purposes of this Agreement, each of the following terms shall have the meaning
specified with respect thereto.
“Agreement”
shall mean this Servicing Agreement as the same may be from time to time
amended.
“Ancillary
Income” shall include, but not be limited to late fees, late charges, not
sufficient funds fees, satisfaction fees, assumption and modification fees
and
interest on Custodial Accounts. Ancillary Income shall not include any
prepayment premiums or yield maintenance payments.
“Applicable
Requirements” shall mean, as of the time of reference, all of the following: (i)
all Mortgage-related obligations of Bayview, including without limitation those
contractual obligations of Bayview or the Servicer contained in this Agreement
or in the Mortgage documents for which Bayview is responsible; (ii) all
applicable Mortgage-related federal, state and local legal and regulatory
requirements (including statutes, rules, regulations and ordinances) binding
upon Bayview or the Servicer; (iii) all applicable Mortgage-related requirements
and guidelines of (1) each governmental agency, board, commission,
instrumentality and other governmental body or office having jurisdiction,
including without limitation those of FHA, FNMA, HUD and VA, and (2) any private
mortgage insurance companies; (iv) all other applicable judicial and
administrative judgments, orders, stipulations, awards, writs and injunctions;
and (v) generally accepted servicing customs and practices of the mortgage
servicing industry.
1
“Certificates”
shall mean the Bayview Financial Mortgage Pass-Through Trust 2006-C Mortgage
Pass-Through Certificates, Series 2006-C.
“Code”
shall mean the Internal Revenue Code of 1986, as amended.
“Commercial
Mortgage Loan” means each Mortgage Loan secured by commercial property (or by
mixed residential/commercial or multifamily residential property), as identified
on Exhibit III hereto.
“Commission”
shall mean The United States Securities and Exchange Commission.
“Determination
Date” shall mean the 15th
day of
each month or, if such day is not a Business Day, the immediately preceding
Business Day.
“Directly
Operate” shall mean, with respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not (within the meaning
of
Treasury Regulation Section 1.512(b)-1(c)(5)) customarily provided to the
tenants in connection with the rental of space for occupancy, the management
or
operation of such REO Property, the holding of such REO Property primarily
for
sale to customers in the ordinary course of a trade or business, the performance
of any construction work thereon or any use of such REO Property in a trade
or
business, in each case other than through an Independent Contractor;
provided,
however,
that
the Servicer shall not be considered to Directly Operate an REO Property solely
because the Servicer establishes rental terms, chooses tenants, enters into
or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
(of the type that would be deductible under Section 162 of the Code) or capital
expenditures with respect to such REO Property or take other activities
consistent with Section 1.856-4(b)(5)(iii) of the Treasury
Regulations.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
“Xxxxxx
Mae” or “FNMA” shall mean the Federal National Mortgage
Association.
“FHA”
shall mean the Federal Housing Administration.
“Final
Recovery Determination” shall mean with respect to any defaulted Mortgage Loan
or any REO Property, a determination made by the Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records and furnish to the Master Servicer (no later than the Servicer
Remittance Date) a certificate signed by a Servicing Officer of the Servicer,
of
each Final Recovery Determination.
“Xxxxxxx
Mac” or “FHLMC” shall mean the Federal Home Loan Mortgage
Corporation.
“Xxxxxx
Mae” or “GNMA” shall mean the Government National Mortgage
Association.
2
“HUD”
shall mean the U.S. Department of Housing and Urban Development.
“Independent
Contractor” shall mean (i) any Person (other than the Servicer) that would be an
“independent contractor” within the meaning of Section 856(d)(3) of the Code if
the Servicer were a real estate investment trust (except that the ownership
tests set forth in that Section shall be considered to be met by any Person
that
owns, directly or indirectly, 35% or more of any class, or 35% or more of the
aggregate of all classes of the Certificates), so long as the Servicer does
not
receive or derive any income from such Person and provided that the relationship
between such Person and the Servicer is at arm’s length, all within the meaning
of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other Person
(including the Servicer) if the Servicer has received an Opinion of Counsel,
which Opinion of Counsel shall be an expense of the Servicer, to the effect
that
the taking of any action in respect of any REO Property by such Person, subject
to any conditions therein specified, that is otherwise herein contemplated
to be
taken by an Independent Contractor will not cause such REO Property to cease
to
qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes
of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
“Mortgage,”
“Mortgage Loans,” “mortgages,” “loan” or “loans” shall mean fixed or adjustable
rate loans, installment sale contracts, security deeds, trust deeds, deeds
of
trust and related loan documents relating to fixed or adjustable rate loans
which comprise the mortgage loans identified on Exhibit I.
“Mortgagor”
or “Mortgagors” shall mean the mortgagors, grantors of installment sale
contracts, grantors of security deeds, grantors of trust deeds and deeds of
trust, and the grantors of any Mortgages.
“Owner”
shall mean Bayview Financial, L.P. and its successors and assigns.
“P
&
I” shall mean principal and interest.
“Prepayment
Interest Shortfall” shall mean, as of any Distribution Date, the excess of (x)
the interest portion of the Monthly Payments due on any Mortgage Loans during
the related Due Period that were the subject of a Prepayment in Full during
the
related Prepayment Period over (y) the aggregate amount of interest paid by
related Mortgagors in respect of the amounts of such Prepayments in Full and
any
other amounts allocable to interest received from the Mortgagor that are
distributable on such Distribution Date.
“Primary
Mortgage Insurance” means any policy of primary mortgage insurance.
“Reconstitution
Agreements” shall mean all applicable agreements executed in connection with
such Securitization Transaction that govern the servicing and administration
of
the Mortgage Loans (and any agreements and other documents incidental thereto,
including officer’s certificates).
“Regulation
AB” shall mean 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.
3
“REMIC”
shall mean a Real Estate Mortgage Investment Conduit, as defined in the
Code.
“Rents
from Real Property” shall mean, with respect to any REO Property, gross income
of the character described in Section 856(d) of the Code as being included
in
the term “rents from real property.”
“REO
Account” shall have the meaning assigned thereto in Section 2.8(b)
hereof.
“REO
Disposition” shall mean the final sale of any REO Property.
“REO
Imputed Payment” shall mean, as to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust Fund, an amount
equal to the scheduled Monthly Payment that would have been due on the related
Mortgage Loan were such Mortgage Loan still outstanding, after giving effect
to
any adjustment of the Mortgage Rate, if applicable; provided,
however,
that
the Servicer shall not be obligated to advance any balloon payment that would
have been due on the related Mortgage Loan, but shall continue to advance the
Monthly Payment in respect thereof in accordance with the amortization schedule
of such Mortgage Loan.
“REO
Property” shall mean Loan Collateral acquired by the Servicer through
foreclosure, deed-in-lieu of foreclosure or otherwise in connection with a
defaulted Mortgage Loan.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Securitization
Transaction” shall mean 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
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
“Servicer”
shall mean Bayview Loan Servicing, LLC or any successor or permitted assign
under the terms of this Agreement.
“Servicer
Information” shall have the meaning set forth in Section 9.6(a)(i)(A) of this
Agreement.
“Servicer
Remittance Date” shall mean the 24th day of each month or, if such day is not a
Business Day, the immediately preceding Business Day, commencing in November
2006.
“Servicing
Criteria” shall mean the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
4
“Servicing
Entity” shall have the meaning set forth in Section 9.3(a).
“Servicing
Fee” shall have the meaning assigned thereto in Section 4.1 hereof.
“Servicing
Standard” shall have the meaning assigned thereto in Section 2.1
hereof.
“Subcontractor”
shall mean 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”
shall mean 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 this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d)
of
Regulation AB.
“T
&
I” shall mean taxes and insurance.
“VA”
shall mean the Veterans Administration.
1.2 Other
Definitional Provisions.
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit V.
ARTICLE
II
AGREEMENTS
OF THE SERVICER
2.1 General.
The
Servicer shall service and administer the Mortgage Loans on behalf of the
Trustee in accordance with Applicable Requirements, the terms of this Agreement
and the respective Mortgage Loans and, to the extent consistent with such terms,
in the same manner in which it services and administers similar mortgage loans
for its own portfolio, giving due consideration to customary and usual standards
of practice of prudent mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
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(i)
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any
relationship that the Servicer or any Affiliate of the Servicer may
have
with the related Mortgagor;
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(ii)
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the
ownership of any Certificates by the Servicer or any Affiliate of
the
Servicer;
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(iii)
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the
Servicer’s obligation to make Delinquency Advances or Servicing Advances;
or
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5
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(iv)
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the
Servicer’s right to receive compensation for its services hereunder or
with respect to any particular
transaction.
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The
standards set forth in the immediately preceding sentence shall be referred
to
herein as the “Servicing Standard.”
Notwithstanding
anything to the contrary in this Agreement, to the extent that rights and
obligations of Bayview hereunder are terminated by the Master Servicer pursuant
to Section 5.2, the Servicer shall assume such rights and obligations as if,
for
such purpose, it were Bayview.
2.2 Collection
of Mortgage Loan Payments.
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement, follow such collection
procedures for all Mortgage Loans that are consistent with the Servicing
Standard. The Servicer may, consistent with the Servicing Standard, waive,
modify or vary any term of any Mortgage Loan or consent to the postponement
of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if such waiver, modification, postponement or indulgence is not
material and provided that no such action will (A) change the Mortgage Rate
on
any Mortgage Loan, (B) defer or forgive the payment of principal or interest
of
any Mortgage Loan, (C) reduce or increase the outstanding principal balance
of
the Mortgage Loan (except for actual payments of principal) or (D) change the
final maturity date of any Mortgage Loan, unless the Servicer has determined,
after consultation with its counsel, that such a modification would not be
treated as a “substantial modification” that would cause a deemed exchange under
Section 1001(a) of the Code or applicable temporary or final regulations
thereunder at any time when the Mortgage Loan is held by any REMIC created
pursuant to the Pooling and Servicing Agreement. Notwithstanding the foregoing,
in the event that any Mortgage Loan is in default or, in the judgment of the
Servicer, such default is reasonably foreseeable, the Servicer, consistent
with
the Servicing Standard, may also waive, modify or vary any term of such Mortgage
Loan (including modifications that would change the Mortgage Rate, defer or
forgive the payment of principal or interest or extend the final maturity date
of such Mortgage Loan), accept payment from the related Mortgagor of an amount
less than the principal balance in final satisfaction of such Mortgage or
consent to the postponement of strict compliance with any such term or otherwise
grant indulgence to any Mortgagor if in the Servicer’s determination such
waiver, modification, postponement or indulgence is not materially adverse
to
the interests of the Certificateholders (taking into account any estimated
Realized Loss that might result absent such action). In addition, if the
Mortgage Rate with respect to any Mortgage Loan is subject to adjustment at
the
option of the holder of the Mortgage Note, the Servicer shall not exercise
such
option.
2.3 Procedure.
Until
the
principal and interest of each Mortgage Loan is paid in full, unless this
Agreement is sooner terminated pursuant to the terms hereof, and subject to
all
Applicable Requirements, the Servicer shall:
(a) Collect
applicable payments of principal, interest and applicable deposits for taxes,
assessments and other public charges that are generally impounded, hazard
insurance premiums, flood insurance premiums as required, FHA insurance or
primary mortgage insurance premiums, optional insurance premiums, and all other
items, as they become due.
6
(b) Accept
payments of principal and interest and impound deposits in accordance with
the
Mortgage Loan instruments. Deficiencies or excesses in payments or deposits
shall be accepted and applied, or accepted and unapplied, or rejected in
accordance with the requirements of HUD and VA, with respect to FHA and VA
mortgages, respectively, and in accordance with the provisions of conventional
mortgage loan instruments with respect to conventional loans.
(c) Apply
all
installments and impound deposits collected from the Mortgagor, and maintain
permanent mortgage account records capable of producing, in chronological order:
the date, amount, distribution, installment due date or other transactions
affecting the amounts due from or to the Mortgagor and indicating the latest
outstanding balances of principal, impound deposits, advances, and unapplied
payments.
(d) Establish
and maintain one or more accounts (collectively, the “Custodial Account”),
entitled “Bayview Loan Servicing, LLC, as servicer for U.S. Bank National
Association, as Trustee for Bayview Financial Mortgage Pass-Through
Certificates, Series 2006-C.” The Custodial Account shall be an Eligible
Account. The Servicer will be required to deposit into the Custodial Account
no
later than the second Business Day after receipt all proceeds of Mortgage Loans
received by the Servicer, less its servicing compensation and other withdrawals
to the extent permitted by this Agreement and to remit such proceeds to the
Master Servicer for deposit in the Collection Account not later than the
Servicer Remittance Date. Funds in the Custodial Account may be invested only
in
Eligible Investments in accordance with the provisions set forth in Section
2.3(m) hereof. The Servicer shall give notice to the Master Servicer and the
Trustee of the location of the Custodial Account maintained by the Servicer
when
established and prior to any change thereof. The Servicer shall, from time
to
time, make withdrawals from the Custodial Account for any of the following
purposes: (i) to remit to the Master Servicer for deposit in the Collection
Account in the amounts and in the manner set forth in Section 2.5(a); (ii)
to
reimburse the Servicer for Delinquency Advances, but only to the extent of
amounts received which represent late collections, Insurance Proceeds and
Liquidation Proceeds (net of the related Servicing Fees) on Mortgage Loans
with
respect to which such Delinquency Advances were made; (iii) to pay the Servicer
any unpaid Servicing Fees and reimburse any unreimbursed Servicing Advances
with
respect to each Mortgage Loan, but only to the extent of any late collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan (provided,
however,
that
if, in the good faith business judgment of the Servicer, any unreimbursed
Servicing Advance will not be ultimately recoverable from related late
collections, Liquidation Proceeds or Insurance Proceeds on such Mortgage Loan
(which determination shall be evidenced by an Officer’s Certificate of the
Servicer delivered to the Master Servicer), then withdrawal from the general
funds in the Custodial Account, without regard to the limitation set forth
above, will be permitted); (iv) to pay to the Servicer as servicing compensation
(in addition to the Servicing Fee) on the Remittance Date any interest or
investment income earned on funds deposited in the Custodial Account; (v) to
pay
to the Servicer or the Seller, as the case may be, with respect to each Mortgage
Loan that has previously been purchased or replaced pursuant to the Pooling
and
Servicing Agreement, all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be; (vi) to reimburse the Servicer
for
any Advance previously made which the Servicer has determined to be a
Non-Recoverable Advance; (vii) to withdraw any amounts deposited to the
Custodial Account in error; and (viii) to clear and terminate the Custodial
Account. Notwithstanding the foregoing, the Servicer shall not withdraw any
amounts relating to Servicing Advances that were advanced by Bayview prior
to
the Cut-off Date (“Owner Advances”), but shall remit such amounts to the Master
Servicer pursuant to Section 2.5(a).
7
(e) [Reserved].
(f) Establish
and maintain one or more accounts (the “Servicing Accounts”) into which all
collections from the Mortgagors for the payment of taxes, assessments, hazard
insurance premiums, and comparable items for the account of the Mortgagors
(“Escrow Payments”) shall be deposited and retained. The Servicing Accounts
shall be Eligible Accounts. The Servicer shall deposit in the Servicing Accounts
on a daily basis, and retain therein, all Escrow Payments collected on account
of the Mortgage Loans, for the purpose of effecting the timely payment of any
such items as required under the terms of this Agreement. Withdrawals of amounts
from a Servicing Account may be made only to (i) effect timely payment of taxes,
assessments, hazard insurance premiums, and comparable items; (ii) reimburse
the
Servicer out of related collections for any advances made pursuant to paragraph
(g) (with respect to taxes and assessments) and paragraph (j) (with respect
to
hazard insurance); (iii) refund to the Mortgagors any sums as may be determined
to be overages; (iv) pay interest, if required and as described below, to the
Mortgagors on balances in the Servicing Account; or (v) clear and terminate
the
Servicing Account at the termination of the Servicer’s obligations and
responsibilities in respect of the Mortgage Loans under this Agreement. As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in Servicing Accounts, to the extent required by law and, to the extent
that interest earned on funds in the Servicing Accounts is insufficient, to
pay
such interest from its or their own funds, without any reimbursement therefor.
As applicable, the Servicer will determine the amount of deposits to be made
by
the Mortgagors and will furnish to each Mortgagor, at least once a year, an
analysis of the escrow/impound account, all in accordance with the Servicing
Standard.
The
Servicer shall be responsible for monitoring and reconciling the Custodial
Account in accordance with industry standards. The Servicer shall attempt to
promptly resolve any discrepancies and shall be responsible for all expenses
and
consequences for failure to reconcile and resolve such
discrepancies.
(g) Maintain
accurate records reflecting the status of taxes, ground rents and other
recurring charges generally accepted by the mortgage servicing industry, which
would become a lien on the Mortgaged Property. For all Mortgage Loans providing
for the payment to and collection by the Servicer of impound deposits for taxes,
ground rents or such other recurring charges, the Servicer shall remit payments
for such charges before the later of (i) any penalty date and (ii) 30 days
after
the servicing transfer of such Mortgage Loan to the Servicer. The Servicer
assumes responsibility for the timely remittance of all such payments and will
hold harmless and indemnify Bayview, the Depositor, the Master Servicer and
the
Trustee from all penalties, loss or damage resulting from the Servicer’s failure
to discharge said responsibility subsequent to delivery of servicing to the
Servicer.
8
(h) In
accordance with the standards of the preceding paragraph, advance or cause
to be
advanced funds as necessary for the purpose of effecting the timely payment
of
taxes and assessments on the Mortgaged Properties, which advances shall be
reimbursable in the first instance from related collections from the Mortgagors
pursuant to paragraph (d). Servicing Advances incurred by the Servicer in
connection with the servicing of the Mortgage Loans (including any penalties
in
connection with the payment of any taxes and assessments or other charges)
on
any Mortgaged Property shall be recoverable by the Servicer to the extent
described herein.
(i) Maintain
in full force and effect at all times, and comply with the terms of, existing
FHA mortgage insurance, VA guarantees or Primary Mortgage Insurance, as
applicable, in accordance with the type of Mortgage, and will assume
responsibility for the remittance of the premiums thereon. The Servicer shall
maintain any optional insurance as mutually agreed upon between the Servicer
and
Bayview. Optional insurance premiums, if any, will be collected monthly and
remitted as collected. Additional set up costs, if any, associated with the
optional insurance will be agreed upon between the Servicer and Bayview and
will
be the responsibility of Bayview.
(j) Use
its
reasonable efforts in accordance with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any Mortgage
Loan as to which the related Mortgaged Property has become an REO Property),
and
if the Mortgagor does not so maintain, shall itself maintain (subject to the
provisions of this Agreement concerning Non-Recoverable Advances) to the extent
the Trustee as mortgagee has an insurable interest (A) fire and hazard insurance
with extended coverage on the related Mortgaged Property in an amount which
is
at least equal to the lesser of (i) 100% of the then “full replacement cost” of
the improvements and equipment (excluding foundations, footings and excavation
costs), without deduction for physical depreciation, and (ii) the outstanding
principal balance of the related Mortgage Loan or such other amount as is
necessary to prevent any reduction in such policy by reason of the application
of co-insurance and to prevent the Trustee thereunder from being deemed to
be a
co-insurer, and (B) such other insurance as provided in the related Mortgage
Loan. The Servicer shall maintain fire and hazard insurance from an insurer
having a General Policy Rating of “B” or better in Best’s Key Rating Guide (a
“Qualified Insurer”) with extended coverage on each REO Property in an amount
which is at least equal to the lesser of (i) 100% of the then “full replacement
cost” of the improvements which are a part of such property or (ii) the
outstanding principal balance of the related Mortgage Loan at the time it became
an REO Property plus accrued interest at the Mortgage Rate and related Servicing
Advances. The Servicer shall maintain, from a Qualified Insurer, with respect
to
each REO Property such other insurance as provided in the related Mortgage
Loan.
The Servicer shall require that all insurance policies required hereunder shall
name the Servicer and its successors and assigns as the mortgagee, as loss
payee
and that all such insurance policies require that 30 days’ notice be given to
the Servicer before termination to the extent required by the related Mortgage,
Mortgage Note, or other Mortgage Loan documents.
(k) Deposit
into the Custodial Account any amounts collected by the Servicer under any
such
policies (other than amounts to be applied to the restoration and repair of
the
related Mortgaged Property or amounts to be released to the Mortgagor in
accordance with the terms of the related Mortgage). It is understood and agreed
that no earthquake or other additional insurance other than flood insurance
is
to be required of any Mortgagor or to be maintained by the Servicer other than
pursuant to the terms of the related Mortgage, Mortgage Note or other Mortgage
Loan documents and pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional insurance. If the
Mortgaged Property is located in a federally designated special flood hazard
area, the Servicer will use its reasonable efforts in accordance with the
Servicing Standard to cause the related Mortgagor to maintain or will itself
obtain (subject to the provisions of this Agreement concerning Non-Recoverable
Advances) flood insurance in respect thereof. Such flood insurance shall be
in
an amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance required by the
terms of the related Mortgage and as is available for the related property
under
the national flood insurance program (assuming that the area in which such
property is located is participating in such program). If an REO Property is
located in a federally designated special flood hazard area, the Servicer will
obtain flood insurance in respect thereof providing substantially the same
coverage as described in the preceding sentences. If at any time during the
term
of this Agreement a recovery under a flood or fire and hazard insurance policy
in respect of an REO Property is not available but would have been available
if
such insurance were maintained thereon in accordance with the standards applied
to Mortgaged Properties described herein, the Servicer shall either (i)
immediately deposit into the Custodial Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair
of
the property from its own funds the amount that would have been recovered,
if
such application would be consistent with the Servicing Standard; provided,
however,
that
the Servicer shall not be responsible for any shortfall in insurance proceeds
resulting from an insurer’s refusal or inability to pay a claim. Costs of the
Servicer of maintaining insurance policies shall be paid by the Servicer as
a
Servicing Advance and shall be reimbursable to the Servicer. The Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under each related insurance policy in a timely
fashion in accordance with the terms of such policy and to take such reasonable
steps as are necessary to receive payment or to permit recovery
thereunder.
9
(l) When
a
Mortgaged Property has been or is about to be conveyed by the Mortgagor, to
the
extent it has knowledge of such conveyance or prospective conveyance, exercise
its rights to accelerate the maturity of the related Mortgage Loan under any
“due-on-sale” clause contained in the related Mortgage or Mortgage Note;
provided,
however,
that
the Servicer shall not exercise any such right if either (i) the “due-on-sale”
clause, in the reasonable belief of the Servicer, is not enforceable under
applicable law (the reasonableness of such belief shall be conclusively
established by an Opinion of Counsel, which may be in-house counsel, to the
foregoing effect obtained at the expense of the Servicer and delivered to the
Trustee and the Master Servicer) or (ii) the Servicer determines that such
enforcement would not be in the best economic interest of the
Certificateholders. In such event, the Servicer shall make reasonable efforts
to
enter into an assumption and modification agreement with the Person to whom
such
property has been or is about to be conveyed, pursuant to which such Person
becomes liable under the Mortgage Note and, unless prohibited by applicable
law
or the Mortgage, the Mortgagor remains liable thereon. If the foregoing is
not
permitted under applicable law, the Servicer is authorized to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted
as
the Mortgagor and becomes liable under the Mortgage Note. The Servicer shall
notify the Trustee that any such assumption or substitution agreement has been
completed by forwarding to the Trustee a copy of the assumption or substitution
agreement (indicating the Mortgage File to which it relates), which copy shall
be added by the Trustee to the related Mortgage File and which shall, for all
purposes, be considered a part of such Mortgage File to the same extent as
all
other documents and instruments constituting a part thereof. The Servicer shall
be responsible for recording any such assumption or substitution agreements.
In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain
as in
effect immediately prior to the assumption or substitution, the stated maturity
or outstanding principal amount of such Mortgage Loan shall not be changed
nor
shall any required Monthly Payments of principal or interest be deferred or
forgiven. Any fee collected by the Servicer for consenting to any such
conveyance or entering into an assumption or substitution agreement shall be
retained by or paid to the Servicer as additional servicing
compensation.
10
(m) Eligible
Investments.
|
(1)
|
The
Servicer may direct any depository institution maintaining the Custodial
Account to invest the funds in one or more Eligible Investments bearing
interest or sold at a discount, and maturing, unless payable on demand,
no
later than the Business Day immediately preceding the date on which
such
funds are required to be withdrawn from such account pursuant to
this
Agreement. All such Eligible Investments shall be held to maturity,
unless
payable on demand. Any investment of funds in a Custodial Account
shall be
made in the name of the Trustee (in its capacity as such) or in the
name
of a nominee of the Trustee. The Trustee shall be entitled to sole
possession (except with respect to investment direction of funds
held in
the Custodial Account) over each such investment and the income thereon,
and, upon the request of the Trustee or its agent, any certificate
or
other instrument evidencing any such investment shall be delivered
directly to the Trustee or its agent, together with any document
of
transfer necessary to transfer title to such investment to the Trustee
or
its nominee. In the event amounts on deposit in a Custodial Account
are at
any time invested in an Eligible Investment payable on demand, the
Trustee
shall, at the direction of the
Servicer:
|
| (x) |
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Eligible Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then
payable thereunder and (2) the amount required to be withdrawn
on such
date; and
|
| (y) |
demand
payment of all amounts due thereunder promptly upon determination
by the
Servicer, or receipt of notice from the Master Servicer, that such
Eligible Investment would not constitute an Eligible Investment
in respect
of funds thereafter on deposit in the Custodial
Account.
|
11
|
(2)
|
The
Servicer shall deposit in the Custodial Account, from its own funds,
the
amount of any loss incurred in respect of any such Eligible Investment
made with funds in such account immediately upon realization of
such
loss.
|
(n) With
respect to a Mortgage Loan that contains a provision in the nature of a
“due-on-encumbrance” clause, which by its terms (i) provides that such Mortgage
Loan (or may at the mortgagee’s option) become due and payable upon the creation
of any lien or other encumbrance on the related Mortgaged Property or (ii)
requires the consent of the related mortgagee to the creation of any such lien
or other encumbrance on the related Mortgaged Property, then for so long as
such
Mortgage Loan is included in the Trust Fund, and to the extent it has knowledge
of such lien or other encumbrance, the Servicer, on behalf of the Trustee,
will
be requested to exercise (or decline to exercise) any right it may have as
the
mortgagee of record with respect to such Mortgage Loan to (x) accelerate the
payments thereon or (y) withhold its consent to the creation of any such lien
or
other encumbrance, in a manner consistent with the Servicing
Standard.
2.4 Other.
The
Servicer shall be responsible for further safeguarding the Trustee’s interest in
the property and rights under the Mortgage by:
(a) Inspecting
properties after the Mortgagor is sixty (60) days or more delinquent in the
payment of any obligation under the Mortgage, and performing such other
inspections as are consistent with the Servicing Standard.
(b) Securing
any property found to be vacant or abandoned, and advising Bayview and the
Master Servicer of the status thereof.
(c) Providing
written or electronic notification to Bayview and the Master Servicer within
five (5) Business Days of the Servicer’s receipt of notice or other awareness of
any liens, bankruptcy, probate proceeding, tax sale, partition, local ordinance
violation, condemnation or proceeding in the nature of eminent domain or similar
event that would, in the Servicer’s reasonable judgment, impair the Trustee’s
interest in the Mortgaged Property; and the Servicer shall take appropriate
action to preserve the Trustee’s interest in the Mortgaged Property; with
respect to junior liens, unless otherwise requested by the Trustee, the Servicer
will not file requests for notification of any action to be taken against the
Mortgagor by a senior lien holder under a senior lien and, until the junior
lien
is delinquent, shall not be required to notify any senior lien holder of the
existence of the junior lien.
(d) Providing
written or electronic notification to Bayview and the Master Servicer within
five (5) Business Days with respect to requests for partial releases, easements,
substitutions, division, subordination, alterations, or waivers of security
instrument terms; that would, in the Servicer’s reasonable judgment, impair the
Trustee’s interest in the Mortgaged Property.
(e) Providing
written or electronic notification to Bayview and the Master Servicer, within
five (5) Business Days of any change in ownership of the Mortgaged Property
that
would, in the Servicer’s reasonable judgment, impair the Trustee’s interest in
such Mortgaged Property; and subject to the Servicing Standard, comply with
all
instructions from Bayview with respect to the acceleration or modification
of
the Mortgage Loan; the Servicer will forward all requests for loan assumption
to
Bayview immediately upon receipt. The Servicer will provide the initial
paperwork necessary to obtain loan assumption information. This information
will
be forwarded to Bayview and the Master Servicer for approval and all necessary
disclosures.
12
(f) Maintaining
in force at all times a blanket fidelity bond and a policy of errors and
omissions insurance coverage that satisfy Xxxxxx Xxx requirements at the
Servicer’s sole expense. Such coverage shall provide Bayview and the Trustee
protection in liquidating a Mortgage Loan against any loss that can be
attributed to damage to the property from a hazard or peril required to be
insured pursuant to this Agreement and that otherwise would be insured but
for
the Servicer’s negligence in allowing insurance coverage to lapse or failing to
keep a sufficient amount of insurance in force. The Servicer shall provide
the
Master Servicer with certificates evidencing such coverage.
(g) Upon
notice to the Master Servicer, disbursing insurance loss settlements,
including:
| (1) |
Receiving
reports of hazard insurance losses and assuring that proof of loss
statements are properly filed;
|
| (2) |
Authorizing
the restoration and rehabilitation of the damaged
property;
|
| (3) |
Collecting,
endorsing and disbursing the insurance loss proceeds and arranging
for
progress inspections and payments, if
necessary;
|
| (4) |
Complying
with the Servicing Standards pertaining to settlement of insurance
losses;
and
|
| (5) |
In
general, attempting to assure that the priority of the Mortgage is
preserved by complying with the Servicing
Standard.
|
(h) Upon
notice to the Master Servicer, processing insurance drafts and loss settlements
in the following manner:
| (1) |
Provided
that the Mortgage Loan is current in all respects, the Servicer may
endorse and deliver to the Mortgagor without prior inspection of
the
property and completion of repairs, settlements drafts for losses
up to
the amount of five thousand dollars ($5,000.00); and
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| (2) |
With
respect to settlement drafts for losses in excess of five thousand
dollars
($5,000.00), the Servicer shall monitor the progress of the repairs
to
insure that the property is being restored in a satisfactory manner
and
will release funds in accordance with completed property inspection
reports.
|
(i) Notwithstanding
anything to the contrary in this Agreement, the Servicer shall take all actions
necessary under any applicable, FHA Insurance, VA Guaranty or any other Primary
Mortgage Insurance Policy to receive all applicable proceeds from such policies
or guaranties.
13
2.5 Accounting,
Remittances and Trustee Reporting.
The
Servicer shall:
(a) On
each
Servicer Remittance Date, remit by wire transfer of immediately available funds
to the Master Servicer (a) all amounts deposited in the Custodial Account as
of
the close of business on the related Determination Date (net of (i) charges
against and withdrawals from the Custodial Account permitted pursuant to this
Agreement and, (ii) amounts relating to interest accrued and unpaid and
principal due and unpaid prior to the Cut-off Date relating to the Mortgage
Loans, as reduced by the amount of any forgiveness or reduction of delinquent
payments by the Servicer (“Pre-Cut-off Date Amounts”), plus (b) (i) all
Delinquency Advances, if any, which the Servicer is required to make pursuant
to
Section 2.10 and (ii) all Prepayment Interest Shortfall payments which the
Servicer is required to make pursuant to Section 2.11 for the related Due
Period, minus (c) (i) any amounts attributable to scheduled Monthly Payments
of
principal and interest received by the Servicer but due on a Due Date or Dates
subsequent to the first day of the month in which the Servicer Remittance Date
occurs and (ii) any prepayments in full or in part received subsequent to the
last day of the month immediately preceding the month in which the Servicer
Remittance Date occurs, which amounts shall be remitted on the Servicer
Remittance Date next succeeding the Due Period for such amounts. In addition,
on
each Servicer Remittance Date, the Servicer shall remit to Bayview (i) any
Pre-Cut-off Date Amounts collected during the related Due Period and (ii) any
prepayment premiums or penalties or yield maintenance amounts collected during
the related Due Period.
Notwithstanding the foregoing provisions of this Section 5(a), the Servicer
shall not remit to Bayview any Pre-Cut-off Date Amounts relating to any
Liquidated Mortgage Loan until all amounts due and owing to the Trust on such
Liquidated Mortgage Loan have been remitted to the Master Servicer. The Servicer
shall remit the amounts described above by wire transfer of immediately
available funds to the Master Servicer to the following account:
Xxxxx
Fargo Bank, N.A.
San
Francisco California
ABA#:
000-000-000
SAS
Clearing Account# 0000000000
FFC
to:
Bayview 2006-C
A/C:
50964100
(b) Not
accept any prepayment of any Mortgage Loan except as specified or authorized
by
the Servicing Standard and by the terms of the Mortgage Loan.
(c) Upon
payment of a Mortgage Loan in full and receipt from the Trustee or its agent
of
any documents or information necessary to effect such release, have prepared
and
file any necessary release or satisfaction documents, continue servicing of
the
loan pending final settlement, and refund any of the Mortgagor
deposits.
(d) Make
applicable interest rate adjustments in compliance with the Servicing Standard
and the related Mortgage Note. The Servicer shall execute and deliver all
appropriate notices required by the Servicing Standard and the Mortgage Loan
documents including but not by way of limitation, timely notification to the
Master Servicer and Bayview, of applicable date and information regarding such
interest rate adjustment, and methods of implementation of such interest rate
adjustments and of all prepayments of any loan hereunder by the
Mortgagor.
14
(e) Perform
such other customary duties, furnish copies of standard reports and execute
such
other documents in connection with its duties hereunder as Bayview, the Master
Servicer and the Trustee from time to time reasonably may require. On the 14th
day of each month (or the immediately preceding Business Day if the 14th day
is
not a Business Day) the Servicer shall deliver or cause to be delivered to
the
Master Servicer and Bayview on computer readable magnetic tape, diskette or
other mutually agreeable format a report containing such information with
respect to the Mortgage Loans as shall be mutually agreed upon by the Servicer
and the Master Servicer including hard copies of the reports described in
Exhibit II.
(f) Provide
Bayview with copies of any and all audit reports issued for the
Trustee.
In
the
event Bayview, the Master Servicer or the Trustee requests the Servicer to
provide special reports or data files or render other related services to either
Bayview, the Trustee or any third party, the Servicer shall use its best efforts
to provide said reports, data files, or related services. The Servicer shall
thereupon xxxx the requesting party for the cost of such reports, data files
or
related services including related delivery costs, in accordance with a separate
fee to be determined in advance by Bayview, the Master Servicer or the Trustee,
as applicable, and the Servicer.
2.6 Delinquency
Control.
The
Servicer shall:
(a) Be
responsible for protecting the Trustee’s interest in the Mortgage Loans by
dealing quickly and effectively, in accordance with established FNMA, VA or
FHA
collection guidelines, as applicable, (unless otherwise instructed by Bayview),
with the Mortgagors who are delinquent or in default. The Servicer’s delinquent
mortgage servicing program shall include an adequate accounting system which
will immediately and positively indicate the existence of delinquent Mortgage
Loans, a procedure that provides for sending delinquent notices, assessing
late
charges, and returning inadequate payments, and a procedure for the individual
analysis of distressed or chronically delinquent loans;
(b) Maintain
a collection department and an on-line automated collection system that
substantially complies with established FNMA, FHA or VA collection guidelines,
as applicable; and
(c) Provide
Bayview and the Master Servicer with a month-end collection and delinquency
report identifying and describing the status of any delinquent loans, and from
time to time as the need may arise, provide Bayview and the Master Servicer
with
loan service reports relating to any items of information which the Servicer
is
otherwise required to provide hereunder, or detailing any matters the Servicer
believes should be brought to the special attention of Bayview and the Master
Servicer.
15
2.7 Foreclosure.
(a) The
Servicer shall use its best efforts, consistent with the Servicing Standard,
to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and
as
to which no satisfactory arrangements can be made for collection of delinquent
payments or for other disposition of such Mortgage Loan. The Servicer shall
be
responsible for all costs and expenses incurred by it in any such proceedings;
provided,
however,
that
such costs and expenses will be recoverable as Servicing Advances by the
Servicer. The foregoing is subject to the provision that, in any case in which
Mortgaged Property shall have suffered damage that is not covered by a hazard
insurance policy or other insurance policy, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan after reimbursement to itself for
such
expenses and that such expenses will be recoverable to it through Liquidation
Proceeds, Insurance Proceeds or otherwise.
Any sale
of a defaulted Mortgage Loan by the Servicer on behalf of the Trustee shall
be
effected in the reasonable judgment of the Servicer to maximize Liquidation
Proceeds.
As
an
alternative to foreclosure, the Servicer may sell a defaulted Mortgage Loan
if
the Servicer determines that such a sale is likely to increase the amount of
Liquidation Proceeds, and any such sale of a defaulted Mortgage Loan by the
Servicer shall be effected in a manner expected, in the reasonable judgment
of
the Servicer, to maximize Liquidation Proceeds.
(b) Notwithstanding
the foregoing provisions of this Section 2.7 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not
either (i) obtain title to such Mortgaged Property as a result of or in lieu
of
foreclosure or otherwise, or (ii) otherwise acquire possession of, or take
any
other action with respect to, such Mortgaged Property, if, as a result of any
such action, the Trustee would be considered to hold title to, to be a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person that regularly
conducts environmental audits in accordance with customary industry standards,
that:
| (1) |
such
Mortgaged Property is in compliance with applicable environmental
laws or,
if not, that it would be in the best economic interest of the Trustee
to
take such actions as are necessary to bring the Mortgaged Property
into
compliance therewith; and
|
| (2) |
there
are no circumstances present at such Mortgaged Property relating
to the
use, management or disposal of any hazardous substances, hazardous
materials, hazardous wastes or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or remediation
could be required under any federal, state or local law or regulation,
or
that if any such materials are present for which such action could
be
required, that it would be in the best economic interest of the Trustee
to
take such actions with respect to the affected Mortgaged
Property.
|
16
With
respect to each Commercial Loan, the Servicer shall make the determination
described above on the basis of a report prepared by a Person that regularly
conducts environmental audits in accordance with customary industry standards,
without regard to whether the Servicer has received notice or has actual
knowledge of the presence of any toxic or hazardous substances on the related
Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 2.7 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section 2.3(d).
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trustee to take such actions as are necessary to bring any
such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trustee.
The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided herein.
With
respect to any commercial property, without regard to whether the Servicer
otherwise has notice or knowledge of the presence of any toxic or hazardous
substance thereon, the Servicer shall use its reasonable best
judgment,
subject
to the Servicing Standard, in
determining whether to obtain an environmental audit report as described above
prior to taking any action described in clauses (i) or (ii) of this paragraph
(b).
(c) Notwithstanding
the foregoing provisions of this Section or any other provision of this
Agreement, the Servicer shall not foreclose upon any Mortgaged Property securing
a Mortgage Loan if in the reasonable judgment of the Servicer it would not
be in
the best economic interests of the Certificateholders to foreclose upon such
Mortgaged Property. In such event, the Servicer will not be required to make
any
Delinquency Advances, Servicing Advances or any other advances in connection
with the Mortgage Loan, and the Servicer will render a Final Recovery
Determination in connection with the Mortgage Loan.
2.8 REO
Property.
Except
to
the extent that the Applicable Requirements provide otherwise, the following
provisions shall apply to the management and disposition of REO
Property:
(a) The
deed
or certificate of sale of any REO Property shall be taken in the name of the
Servicer on behalf of the Trustee or its nominee or in the name of the Trustee
or its nominee, whichever course of action is in the best interest of the
Trustee in the reasonable judgment of the Servicer.
17
(b) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain with respect to REO Properties
an account held in trust for the Trustee (the “REO Account”), which shall be an
Eligible Account. The Servicer shall be permitted to allow the Custodial Account
to serve as the REO Account, subject to separate ledgers for each REO Property.
The Servicer shall be entitled to retain or withdraw any interest income paid
on
funds deposited in the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period as the Servicer deems
to
be in the best interests of the Trustee. In connection therewith, the Servicer
shall deposit, or cause to be deposited, on a daily basis in the REO Account
all
revenues received by it with respect to an REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property including, without limitation: (i) all insurance premiums
due and payable in respect of such REO Property; (ii) all real estate taxes
and
assessments in respect of such REO Property that may result in the imposition
of
a lien thereon; and (iii) all costs and expenses necessary to maintain such
REO
Property.
To the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
(d) Anything
to the contrary herein notwithstanding, the Servicer shall sell such REO
Property in any event within three years after title has been taken to such
REO
Property, unless (a) a REMIC election has not been made under the Pooling and
Servicing Agreement and (b) the Servicer determines that a longer period is
necessary for the orderly liquidation of the REO Property. The Servicer shall
use its best efforts to dispose of the REO Property as soon as possible. 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
Trustee as to the progress being made in selling such REO Property. The Servicer
shall not Directly Operate any REO Property, but shall employ an Independent
Contractor to operate REO Property.
Upon
request by Bayview or the Trustee, with respect to any REO Property, the
Servicer shall obtain broker price opinions from parties selected by the
Servicer, and shall solicit, in a commercially reasonable manner, bids for
the
purchase of such REO Property.
(e) In
addition to the withdrawals permitted under Section 2.3(d), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself unpaid Servicing Fees in respect of the related Mortgage
Loan;
and (ii) to reimburse itself for unreimbursed Servicing Advances and Delinquency
Advances made in respect of such REO Property or the related Mortgage Loan.
On
the Servicer Remittance Date, the Servicer shall withdraw from each REO Account
maintained by it and deposit into the Collection Account the income from the
related REO Property received during the prior calendar month, net of any
withdrawals made pursuant hereto.
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(f) On
or
before February 28 of each year, the Servicer shall file information returns
with respect to the receipt of mortgage interest received in a trade or
business, reports of foreclosures and abandonments of any Mortgaged Property
and
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code and
a
copy thereof shall be sent to the Master Servicer (upon its request), Bayview
and the Trustee promptly after the filing thereof.
2.9 Books
and Records.
(a) Upon
Bayview’s, the Master Servicer’s or the Trustee’s written request, the Servicer
shall furnish a detailed statement of its financial condition, shall give
Bayview, the Master Servicer or the Trustee or its authorized representative
opportunity upon notice at any time during its normal business hours to examine
the Servicer’s books and records and operating procedures, or shall cause a
nationally recognized certified public accountant selected and employed by
it to
provide Bayview and the Master Servicer not later than ninety (90) days after
the close of the Servicer’s fiscal year, with a certified statement of the
Servicer’s financial condition as of the close of its fiscal year. The Servicer
shall make its servicing personnel available during regular business hours
to
respond to reasonable inquiries from the Master Servicer or Bayview. Any
additional requests for loan audit or confirmations to be performed by the
Servicer’s audit firm on the Mortgage Loans shall be at the sole expense of the
requesting party. The Servicer will keep records in accordance with industry
standards pertaining to each Mortgage Loan, and such records shall be the
property of the Trustee and upon termination of this Agreement shall be
delivered to the Trustee at the Trustee’s expense.
(b) The
Servicer shall provide to Bayview and the Master Servicer, and the supervisory
agents and examiners of each of the foregoing (which, in the case of supervisory
agents and examiners, may be required by applicable state and federal
regulations), access to the documentation regarding the Mortgage Loans, such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Servicer designated by
it.
2.10 Advance
of Monthly Payments.
(a) The
amount of Delinquency Advances to be made by the Servicer for any Servicer
Remittance Date shall equal the sum of (i) the aggregate amount of Monthly
Payments (net of the related Servicing Fee), due during the related Due Period
in respect of the Mortgage Loans, which Monthly Payments were delinquent on
a
contractual basis as of the close of business on the related Determination
Date
and (ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Due Period and as to which REO Property an REO
Disposition did not occur during the related Due Period, an amount equal to
the
excess, if any, of the REO Imputed Payment on such REO Property for the most
recently ended calendar month, over the net income from such REO Property
transferred to the Custodial Account for distribution on such Distribution
Date.
For purposes of the preceding sentence, the Monthly Payment on each Balloon
Loan
with a delinquent balloon payment is equal to the assumed monthly payment that
would have been due on the related Due Date based on the original principal
amortization schedule for such Balloon Loan.
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(b) On
or
before noon (New York time) on the Servicer Remittance Date, the Servicer shall
deposit in the Collection Account an amount equal to the aggregate amount of
Delinquency Advances, if any, to be made in respect of the Mortgage Loans and
REO Properties for the related Distribution Date either (i) from its own funds
or (ii) from the Custodial Account, to the extent of funds held therein for
future distribution (in which case it will cause to be made an appropriate
entry
in the records of the Custodial Account that amounts held for future
distribution have been used by the Servicer in discharge of any such Delinquency
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the
total amount of Delinquency Advances to be made by the Servicer with respect
to
the Mortgage Loans and REO Properties. Any amounts held for future distribution
and so used shall be appropriately reflected in the Servicer’s records and
replaced by the Servicer by deposit in the Custodial Account on or before any
future Servicer Remittance Date to the extent that the Available Funds for
the
related Distribution Date (determined without regard to Delinquency Advances
to
be made on the Servicer Remittance Date) shall be less than the total amount
that would be remitted by the Servicer to the Master Servicer pursuant to this
Agreement on such Servicer Remittance Date if such amounts held for future
distributions had not been so used to make Delinquency Advances. The Master
Servicer will provide notice to the Servicer in the event that the amount
remitted by the Servicer to the Master Servicer on such date is less than the
Delinquency Advances required to be made by the Servicer for the related
Distribution Date.
(c) The
obligation of the Servicer to make such Delinquency Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan or REO Property, shall continue until
a
Final Recovery Determination in connection therewith or the removal thereof
from
the Trust Fund pursuant to any applicable provision of this Agreement, except
as
otherwise provided in this Section.
(d) Notwithstanding
anything herein to the contrary, no Delinquency Advance shall be required to
be
made hereunder by the Servicer if such Advance would, if made, constitute a
Non-Recoverable Advance. The determination by the Servicer that it has made
a
Non-Recoverable Advance or that any proposed Delinquency Advance, if made,
would
constitute a Non-Recoverable Advance, shall be evidenced by an Officers’
Certificate of the Servicer delivered to the Master Servicer, Bayview and the
Trustee.
2.11 Prepayment
Interest Shortfalls.
On
or
before noon (New York time) on each Servicer Remittance Date, the Servicer
shall
deposit in the Collection Account, from its own funds, an amount equal to the
aggregate amount of Prepayment Interest Shortfalls with respect to Prepayments
in Full received during the related Due Period.
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ARTICLE
III
AGREEMENTS
OF BAYVIEW
3.1 Documentation.
(a) If
applicable, at its sole cost and expense, Bayview shall provide the Servicer
with:
|
(i)
|
Copies
of any documents or records, which are necessary or appropriate for
the
Servicer to conduct the servicing of the Mortgage
Loans;
|
|
(ii)
|
Sufficient
data and documentation for each Mortgage Loan submitted hereunder
to
enable the Servicer to place and continue to service the Mortgage
Loan on
its computer system; and
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|
(iii)
|
Prior
to the release of good-bye letters, a complete and accurate listing
of any
Mortgage Loans where the mortgage payment is inclusive of an optional
insurance premium. This list will also provide the name of the insurance
company; type of premium coverage; premium amount; and the name and
telephone number of the individual at Bayview’s firm or affiliation
knowledgeable as to such coverage.
|
(b) Bayview
shall use its best efforts to cause the prior servicer of each Mortgage Loan
to
provide the Servicer with:
|
(i)
|
Documentation
that a hazard insurance policy is in force for each Mortgage Loan
delivered to the Servicer for servicing, together with copies of
all
change of Mortgage Loan notifications submitted to the applicable
hazard
insurance company;
|
|
(ii)
|
Tax
service contracts from an issuer reasonably acceptable to the Servicer.
In
lieu thereof, Bayview may provide the Servicer with the requisite
fee for
the Servicer to acquire such contracts;
and
|
|
(iii)
|
Flood
contracts from an issuer reasonably acceptable to the Servicer. In
lieu
thereof, Bayview may provide the Servicer with the requisite fee
for the
Servicer to acquire such contracts.
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ARTICLE
IV
COMPENSATION
4.1 Servicing
Fee.
As
consideration for servicing the Mortgage Loans, the Servicer shall be paid
on
each Servicer Remittance Date a monthly service fee (the “Servicing Fee”) equal
to the product of (x) the Servicing Fee Rate and (y) the Principal Balance
of
such Mortgage Loan immediately preceding the Servicer Remittance Date occurring
in such month. The “Servicing Fee Rate” with respect to each Mortgage Loan
serviced by the Servicer shall be the per annum rate set forth on the Mortgage
Loan Schedule attached as Exhibit I hereto. The Servicer shall also be entitled
to retain any Ancillary Income.
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4.2 Solicitation.
The
Servicer shall not be entitled to solicit individual Mortgagors for accident,
health, life, property and casualty insurance, or any other mortgage-related
products or services without the prior consent of Bayview. Notwithstanding
the
foregoing, it is understood and agreed that promotions, which are directed
to
the general public including, without limitation, mass mailings based on
commercially acquired mailing lists, newspaper, radio and television
advertisements, shall not constitute solicitations under this paragraph.
ARTICLE
V
TERM
AND TERMINATION
5.1 Term
and Notice.
The
term
of this Agreement shall extend to the Termination Date (as defined in Section
10.01 of the Pooling and Servicing Agreement).
At
any
time during the term hereof, Bayview may, without cause, by forty-five (45)
days
prior written notice to the Servicer, terminate this Agreement as to all but
not
less than all Mortgage Loans then being serviced. Bayview shall reimburse the
Servicer and the Master Servicer for the reasonable costs and expenses
associated with transfer of the servicing to a successor Servicer.
Appointment
of a successor Servicer by Bayview shall be subject to the following conditions:
(i) written confirmation from the Rating Agencies shall have been obtained
that
appointment of such successor servicer will not result in the reduction or
withdrawal of any rating assigned to an outstanding Class of Certificates,
(ii)
the Master Servicer shall have consented to such appointment and all applicable
provisions of the Pooling and Servicing Agreement shall have been complied
with,
(iii) such successor Servicer shall have entered into a servicing agreement
substantially similar to this Agreement.
At
any
time during the term hereof, the Servicer may, without cause, by one hundred
twenty (120) days prior written notice to Bayview, the Master Servicer and
the
Trustee, terminate this Agreement as to all but not less than all Mortgage
Loans
then being serviced; provided,
however,
the
Servicer shall continue to service the Mortgage Loans notwithstanding the
expiration of such one hundred twenty (120) day period until a successor
servicer shall have been appointed in accordance with this Agreement and the
Pooling and Servicing Agreement.
5.2 Termination.
In
the
event of a breach of the Servicer’s obligation to make the remittances required
pursuant to Sections 2.5, 2.10 or 2.11, if such breach is not cured within
three
(3) Business Days after the date such remittance is due, the Master Servicer,
on
behalf of the Trustee may terminate this Agreement and require the immediate
transfer of all Mortgage Loans, Mortgage Loan documents, and data. In the event
of any other material breach of this Agreement by the Servicer, which breach
is
curable, the Servicer shall have thirty (30) days to cure such breach (other
than a breach of the Servicer’s obligation under Sections 9.4, 9.5 and
10.2(b)(ii) which the Servicer shall cure within ten (10) calendar days, in
accordance with Section 9.6(b)(ii) hereof) after written notification is given
by Bayview, the Master Servicer or the Trustee, and if such breach is either
not
cured within the thirty (30) day period, or is a breach of such a type as to
be
incapable of being cured, the Master Servicer, on behalf of the Trustee, or
Bayview may terminate this Agreement upon five (5) days notice, and require
the
immediate transfer of all Mortgage Loans, Mortgage Loan documents, and data.
Bayview and the Master Servicer shall be entitled to be reimbursed by the
Servicer for all costs of collection and all costs related to the transfer
of
said Mortgage Loans, Mortgage Loan documents and data.
22
As
and if
applicable, should the Servicer at any time during the term of this Agreement
have its rights to service for FHA, FHLMC, FNMA, GNMA, HUD or VA, suspended
or
lose any other permits or licenses necessary to carry out its responsibilities
under this Agreement, or if the Servicer becomes insolvent, files for
bankruptcy, or is placed under conservatorship or receivership, then, and in
any
of these events, Bayview or the Master Servicer may immediately terminate this
Agreement for cause, without any further liability to the Servicer. Bayview
and
the Master Servicer shall be entitled to be reimbursed by the Servicer for
all
costs of collection and all costs related to the transfer of said Mortgage
Loans, Mortgage Loan documents and data.
In
the
event of a material breach of this Agreement by Bayview, which breach is
curable, Bayview shall have thirty (30) days to cure such breach after written
notification is given by the Master Servicer or the Trustee. If the breach
is
either not cured within the thirty (30) day period, or is a breach of such
a
type as to be incapable of being cured, the Master Servicer, on behalf of the
Trustee, may terminate the rights and obligations of Bayview under Article
II of
this Agreement and under the Pooling and Servicing Agreement (other than
Bayview’s indemnification rights pursuant to Section 2.3(g) upon five (5) days
notice.
The
rights of termination, as provided herein, are in addition to all other
available rights and remedies, including the right to recover damages in respect
of any breach. Notwithstanding the foregoing, neither party shall be liable
to
the other for any special, punitive or consequential damages.
5.3 [Reserved].
5.4 Reimbursement.
If
terminated without cause pursuant to Section 5.1, upon termination of this
Agreement, Bayview shall reimburse the Servicer for all costs reasonably
incurred in connection with the return or transfer, as applicable, of any
documents relating to the Mortgage Loans then serviced to Bayview, Bayview’s
designee, or the Trustee or the Trustee’s designee. In addition, in connection
with any termination or transfer, upon the servicing transfer date, the Servicer
shall be entitled to reimbursement by Bayview for all Advances made in
accordance with the terms of this Agreement. In the event that the Servicer
does
not receive reimbursement for all Advances upon the servicing transfer date,
then the Servicer shall be entitled to reimbursement for all Advances in
accordance with the terms of this Agreement as recoveries are made in respect
of
the related Mortgage Loan or, upon the determination by the successor Servicer
that Advances in respect of such Mortgage Loan are non-recoverable, from general
funds on deposit in the Custodial Account.
23
5.5 Accounting.
Upon
termination of this Agreement, the Servicer will account for and turn over
to
Bayview, Bayview’s designee, the Master Servicer, the Master Servicer’s
designee, or the Trustee or the Trustee’s designee, as applicable, all funds
collected hereunder, less the compensation then due the Servicer, and deliver
to
Bayview, Bayview’s designee, the Master Servicer, the Master Servicer’s
designee, the Trustee or the Trustee’s designee, as applicable, all records and
documents relating to each Mortgage Loan then serviced and will advise the
Mortgagors that their mortgages will henceforth be serviced by Bayview,
Bayview’s designee, the Master Servicer, the Master Servicer’s designee, the
Trustee or the Trustee’s designee.
ARTICLE
VI
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF BAYVIEW
6.1 Assistance.
Bayview
warrants and represents to, and covenants and agrees with the Servicer that,
to
the extent necessary, Bayview shall cooperate with and assist the Servicer
as
reasonably requested by the Servicer, in carrying out the Servicer’s covenants,
agreements, duties and responsibilities under this Agreement.
6.2 Notice
of Breach.
Bayview
shall immediately notify the Servicer of any failure or anticipated failure
on
its part to observe and perform any warranty, representation, covenant or
agreement required to be observed or performed by it as a servicer.
6.3 Prior
Servicing.
Bayview
has caused the Mortgage Loans to be serviced in accordance with the Servicing
Standard during the period Bayview owned the Mortgage Loans prior to the
assumption of the servicing of the Mortgage Loans by the Servicer pursuant
to
this Agreement.
6.4 Authority.
Bayview
is a duly organized and validly existing limited partnership in good standing
under the laws of its state of organization and has all requisite power and
authority to enter into this Agreement and the persons executing this Agreement
on behalf of Bayview are duly authorized to do so.
ARTICLE
VII
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SERVICER
Subject
to the provisions of Article VIII hereinbelow, the Servicer warrants and
represents to, and covenants and agrees with, Bayview as follows:
7.1 Notice
of Breach.
The
Servicer shall immediately notify Bayview of any failure or anticipated failure
on its part to observe and perform any warranty, representation, covenant or
agreement required to be observed and performed by it as a Servicer.
24
7.2 Agency
Approvals.
Servicer
is an approved servicer for FHA, FHLMC, FNMA, GNMA, HUD and VA, is an FHA
Approved Mortgagee and is qualified to own and hold VA Mortgage Loans, and
shall
maintain such approvals throughout the term of this Agreement.
7.3 Authority.
The
Servicer is duly organized and validly existing and in good standing under
the
laws of its jurisdiction of organization and has all requisite power and
authority to enter into this Agreement and the persons executing this Agreement
on behalf of the Servicer are duly authorized so to do; and this Agreement
evidences the valid, binding and enforceable obligation of the Servicer and
all
requisite action has been taken by the Servicer to make this Agreement valid
and
binding upon the Servicer in accordance with its terms.
ARTICLE
VIII
INDEPENDENCE
OF PARTIES; INDEMNIFICATION; SURVIVAL
8.1 Independence
of Parties.
The
following terms shall govern the relationship between Bayview and the
Servicer:
(a) The
Servicer shall have the status of, and act as, an independent contractor.
Nothing herein contained shall be construed to create a partnership or joint
venture between Bayview, the Master Servicer and the Servicer.
(b) Anything
herein contained in this Article VIII or elsewhere in this Agreement to the
contrary notwithstanding, the representations and warranties of the Servicer
contained in this Agreement shall not be construed as a warranty or guarantee
by
the Servicer as to future payments by any Mortgagor.
(c) Anything
herein contained in this Article VIII or elsewhere in this Agreement to the
contrary notwithstanding, the Servicer shall not be responsible for performance
or compliance under any loan repurchase agreements, indemnifications,
representations or warranties of an origination nature made by Bayview or any
other party to the Trustee.
8.2 Indemnification.
(a) In
addition to the Servicer’s indemnification obligations under Section 9.6 of this
Agreement, the Servicer agrees to indemnify, defend, and hold harmless, Bayview,
the Master Servicer and the Trustee, their respective officers, employees,
agents and directors, and the Trust from any liability, claim, loss, demand,
action, damage, assessment, deficiency, tax, cost and expense, including
reasonable attorneys’ fees, directly or indirectly resulting from or arising out
of the Servicer’s failure to observe or perform any or all of the Servicer’s
covenants, agreements, warranties or representations contained in this
Agreement.
25
(b) The
Servicer indemnifies, agrees to defend, and holds harmless Bayview and its
respective officers, employees, agents and directors from any liability, claim,
loss, demand, action, damage, assessment, deficiency, tax, cost and expense,
including reasonable attorney’s fees, directly or indirectly resulting from or
arising out of any material misstatement contained in the information regarding
the Servicer included in the Prospectus or any omission therefrom that renders
the statements contained therein misleading.
The
Servicer shall not be under any obligation to appear in, prosecute or defend
any
legal action which is not incidental to its duties to service the Mortgage
Loans
in accordance with this Agreement and which in its opinion may involve it in
any
expense or liability; provided,
however,
that
the Servicer may, with the consent of the Trustee, undertake any such action
which it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto. In such event, or if the Servicer
deems
it necessary to defend any such action, the Servicer shall be entitled to
reimbursement from the Custodial Account for the reasonable legal expenses
and
costs of such action.
In
addition, the Servicer, the Trustee and Bayview and their respective directors,
officers, employees and agents shall be entitled to indemnification from the
Trust Fund for any loss, liability or expense incurred in connection with any
claim, demand, action or legal proceeding incurred without negligence or willful
misconduct on their part, arising out of, or in connection with, the acceptance
or administration of the Trust, including, without limitation, servicing of
the
Mortgage Loans, the REO Property and the costs and expenses (including
reasonable attorney’s fees) of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder.
8.3 Indemnification
by Bayview.
Bayview
indemnifies, agrees to defend, and holds harmless the Servicer and the Trustee
from any liability, claim, loss, demand, action, damage, assessment,
deficiencies, taxes, costs and expenses, including reasonable attorneys’ fees,
directly or indirectly resulting from or arising out of Bayview’s failure to
observe or perform any or all of Bayview’s covenants, agreements, warranties or
representations contained in this Agreement.
8.4 Procedure
for Indemnification.
Promptly
upon receipt of notice of any claim, demand or assessment or the commencement
of
any suit, demand, action or proceeding in respect of which indemnity may be
sought pursuant to the terms of this Agreement, the party seeking
indemnification (the “Indemnitee”) will use its best efforts to notify the other
party (the “Indemnitor”) in writing thereof in sufficient time for the
Indemnitor to respond to such claim or answer or otherwise plead in such action.
Except to the extent that the Indemnitor is prejudiced thereby, the omission
of
the Indemnitee to promptly notify the Indemnitor of any such claim or action
shall not relieve the Indemnitor from any liability which it may have to the
Indemnitee in connection therewith. If any claim, demand or assessment shall
be
asserted or suit, action or proceeding commenced against the Indemnitee, the
Indemnitor will be entitled to participate therein, and to the extent it may
wish to assume the defense, conduct or settlement thereof, with counsel
reasonably satisfactory to the Indemnitee. After notice from the Indemnitor
to
the Indemnitee of its election to assume the defense, conduct, or settlement
thereof, the Indemnitor will not be liable to the Indemnitee for any legal
or
other expenses consequently incurred by the Indemnitee in connection with the
defense, conduct or settlement thereof. The Indemnitee will cooperate with
the
Indemnitor in connection with any such claim and make its personnel, books
and
records relevant to the claim available to the Indemnitor. In the event the
Indemnitor does not wish to assume the defense, conduct or settlement of any
claim, demand or assessment, the Indemnitee will not settle such claim, demand
or assessment without the prior written consent of the Indemnitor, which consent
shall not be unreasonably withheld.
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8.5 Survival.
The
indemnifications, representations and warranties set forth herein shall survive
the termination or assignment of this Agreement and the resignation or
termination of the Servicer.
ARTICLE
IX
COMPLIANCE
WITH REGULATION AB
9.1 Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that the purpose of Article IX of this
Agreement is to facilitate compliance by the Owner and any Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Servicer acknowledges that investors in privately offered securities may require
that the Owner or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provision of comparable disclosure in private offerings.
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 the 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, any Master Servicer or such Depositor to comply
with the provisions of Regulation AB, together with such disclosures relating
to
the Servicer, any Subservicer, any Third-Party Originator 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.
27
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.
9.2 Additional
Representations and Warranties of the Servicer.
(a) The
Servicer shall be deemed to represent to the Owner and to any Depositor, as
of
the date on which information is first provided to the Owner or any Depositor
under Section 9.3 that, except as disclosed in writing to the Owner 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 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
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 this 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 this 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, any Subservicer or any Mortgage Loan originator 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.
(b) If
so
requested by the Owner or any Depositor on any date following the
date
on which information is first provided to the Owner or any Depositor under
Section 9.3,
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.
9.3 Information
to be Provided by the Servicer.
(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
Section 9.3(a), a “Servicing Entity”), as is requested for the purpose of
compliance with Item 1108 of Regulation AB. Such information shall include,
at a
minimum:
(i) the
Servicing Entity’s form of organization;
28
(ii) a
description of how long the Servicing Entity has been servicing mortgage loans;
a general discussion of the Servicing Entity’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicing Entity’s
experience in, and procedures for, the servicing function it will perform under
this Agreement and any Reconstitution Agreements; information regarding the
size, composition and growth of the Servicing Entity’s portfolio of mortgage
loans of a type similar to the Mortgage Loans and information on factors related
to the Servicing Entity 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:
(A) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicing Entity 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;
(B) the
extent of outsourcing the Servicing Entity utilizes;
(C) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of mortgage loans
involving the Servicing Entity as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(D) whether
the Servicing Entity has been terminated as servicer in a mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(E) 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;
(iii) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicing Entity’s
policies or procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreements for mortgage loans of
a
type similar to the Mortgage Loans;
(iv) information
regarding the Servicing Entity’s financial condition, to the extent that there
is a material risk that an adverse financial event or circumstance involving
the
Servicing Entity could have a material adverse effect on the performance by
the
Servicing Entity of its servicing obligations under this Agreement or any
Reconstitution Agreement;
(v) information
regarding advances made by the Servicing Entity on the Mortgage Loans and the
Servicing Entity’s overall servicing portfolio of 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 Servicing
Entity to the effect that the Servicing Entity has made all advances required
to
be made on 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;
29
(vi) a
description of the Servicing Entity’s processes and procedures designed to
address any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
(vii) a
description of the Servicing Entity’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(viii) information
as to how the Servicing Entity defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
(b) If
so
requested by the Owner or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer
to)
(i) notify the Owner and any Depositor in writing of (A) any material litigation
or governmental proceedings pending against the Servicer or any Subservicer,
and
(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: the sponsor, the depositor, the issuing entity, any servicer,
any
trustee, any originator, any significant obligor, any enhancement or support
provider or any other material transaction party (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Owner and any Depositor
a
description of such proceedings, affiliations or relationships.
(c) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
Subservicer under this 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 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 its reporting obligation under
Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(d) In
addition to such information as the Servicer is obligated to provide pursuant
to
other provisions of this Agreement, if so requested by the Owner or any
Depositor, the Servicer shall provide such information regarding the performance
or servicing of the Mortgage Loans as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the monthly reports
otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
30
9.4 Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Owner, any Master Servicer and any Depositor a statement of
compliance addressed to the Owner and such Depositor 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 this 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 this 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.
9.5 Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Owner, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Owner, such Master Servicer and such
Depositor) 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 Master Servicer and such Depositor
and signed by an authorized officer of the Servicer, and shall address each
of
the Servicing Criteria specified on a certification substantially in the form
of
Exhibit VII hereto delivered to the Owner concurrently with the execution of
this Agreement;
(ii) deliver
to the Owner, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Owner, such Master Servicer
and such Depositor 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 10.2(b)(ii) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Owner and any Depositor
an assessment of compliance and accountants’ attestation as and when provided in
paragraphs (i) and (ii) of this Section; and
(iv) deliver
to the Owner, any Depositor 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 VI.
31
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.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section 9.5(a)(i)
shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit VII hereto delivered to the Owner
concurrently with the execution of this Agreement 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 9.5(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Section
10.2.
9.6 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: 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 purchaser,
each
Person who controls any of such parties or the Depositor (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing and of the Depositor, and shall hold each of them harmless
from
and against any losses, damages, penalties, fines, forfeitures, legal fees
and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other
material
provided
under
this Article IX
by or on
behalf of the Servicer,
or provided under this Article IX or Section 10.2 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; or
32
(ii) 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 IX or Section 10.2, including
any failure by the Servicer to identify pursuant to Section 10.2(b)(ii) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
9.2(a) or in a writing furnished pursuant to Section 9.2(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Servicer of a representation or warranty in a writing furnished pursuant to
Section 9.2(b) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
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 Subcontractor.
(b) (i) 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 IX or Section 10.2, or any
breach by the Servicer of a representation or warranty set forth in Section
9.2(a) or in a writing furnished pursuant to Section 9.2(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Servicer of a representation or warranty in a writing furnished pursuant to
Section 9.2(b) to the extent made as of a date subsequent to such closing date,
shall, except as provided shall, except as provided in clause (ii) of this
paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Owner, any
Master Servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Servicer; provided
that to
the extent that any provision of this 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.
(ii) Any
failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants’ letter when and
as required under Section 9.4 or 9.5, including any failure by the Servicer
to
identify pursuant to Section 10.2(b)(ii) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Servicer
under this Agreement and any applicable Reconstitution Agreement, and shall
entitle the Owner, any Master Servicer or any Depositor, as applicable, in
its
sole discretion to terminate the rights and obligations of the Servicer as
servicer under this Agreement and/or any applicable Reconstitution Agreement
without payment (notwithstanding anything in this Agreement to the contrary)
of
any compensation to the Servicer; provided
that to
the extent that any provision of this 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.
33
Neither
the Owner nor any Depositor shall be entitled to terminate the rights and
obligations of the Servicer pursuant to this subparagraph (b)(ii) 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.
(iii) 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 this 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.
ARTICLE
X
MISCELLANEOUS
10.1 Changes
in Practices.
The
parties hereto acknowledge that the standard practices and procedures of the
mortgage servicing industry change or may change over a period of time. To
accommodate these changes, the Servicer may from time to time notify Bayview
of
such material changes in practices and procedures.
10.2 Assignment
of Servicing; Use of Subservicers and Subcontractors.
(a) This
Agreement may not be assigned by the Servicer without the prior written consent
of Bayview and the Trustee; provided,
however,
that
this Agreement shall be assumed by (i) any entity into which the Servicer may
be
merged or consolidated, or any entity succeeding to the business of the
Servicer, or (ii) any affiliate of the Servicer, subject in each
case only
to
the requirement that such successor entity shall satisfy all the requirements
of
this Agreement and the Pooling and Servicing Agreement.
34
(b) 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 this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of subsection (i) below. 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 this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
subsection (ii) below.
(i) It
shall
not be necessary for the Servicer to seek the consent of the Owner or any
Depositor 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 9.2, 9.3(a) and (c), 9.4, 9.5 and 9.6 of this Agreement to the same
extent as if such Subservicer were the Servicer, and to provide the information
required with respect to such Subservicer under Section 9.3(b) of this
Agreement. The Servicer shall be responsible for obtaining from each Subservicer
and delivering to the Owner, any Master Servicer and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
9.4, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 9.5 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 9.5 as and when required to be
delivered.
(ii) It
shall
not be necessary for the Servicer to seek the consent of the Owner or any
Depositor to the utilization of any Subcontractor. The Servicer shall promptly
upon request provide to the Owner and any Depositor (or any designee of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Owner and such Depositor) of the role
and
function of each Subcontractor utilized by the Servicer or any Subservicer,
specifying (A) the identity of each such Subcontractor, (B) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (C) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (B) 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 9.5 and 9.6 of this Agreement 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,
any Master Servicer and any Depositor any assessment of compliance and
attestation required to be delivered by such Subcontractor under Section 9.5,
in
each case as and when required to be delivered.
35
(c) Notwithstanding
any subservicing agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to Bayview, the Master Servicer, the Trustee
and
the Certificateholders for the servicing and administering of the Mortgage
Loans
in accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on Mortgage
Loans when the Subservicer has actually received such payments and, unless
the
context otherwise requires, references in this Agreement to actions taken or
to
be taken by the Servicer in servicing the Mortgage Loans include actions taken
or to be taken by a Subservicer on behalf of the Servicer. The Servicer shall
be
entitled to enter into any agreement with a Subservicer for indemnification
of
the Servicer by such Subservicer, and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
(d) In
the
event the Servicer shall for any reason no longer be the Servicer, the successor
Servicer, on behalf of Bayview, the Master Servicer and the Trustee, shall
thereupon assume all of the rights and obligations of the Servicer under each
subservicing agreement that the Servicer may have entered into, unless the
successor Servicer elects to terminate any subservicing agreement in accordance
with its terms. The successor Servicer shall be deemed to have assumed all
of
the Servicer’s interest therein and to have replaced the Servicer as a party to
each subservicing agreement to the same extent as if the subservicing agreements
had been assigned to the assuming party, except that the Servicer shall not
thereby be relieved of any liability or obligations under the subservicing
agreements to the extent incurred prior to the replacement of the predecessor
Servicer. The Servicer at its expense and without right of reimbursement
therefor, shall, upon request of the successor Servicer, deliver to the assuming
party all documents and records relating to each subservicing agreement and
the
Mortgage Loans then being serviced and an accounting of amounts collected and
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the subservicing agreements to the assuming
party.
(e) As
part
of its servicing activities hereunder, the Subservicer, for the benefit of
Bayview, the Master Servicer, the Trustee and the Certificateholders, shall
enforce the obligations of each Subservicer under the related subservicing
agreement. Such enforcement, including, without limitation, the legal
prosecution of claims and the pursuit of other appropriate remedies, shall
be in
such form and carried out to such an extent and at such time as the Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Servicer shall pay the costs of such enforcement at its
own
expense, and shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loan or (ii) from
a
specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed.
(f) Any
subservicing agreement that may be entered into and any other transactions
or
services relating to the Mortgage Loans involving a Subservicer in its capacity
as such and not as an originator shall be deemed to be between the Subservicer
and the Servicer alone and none of the Master Servicer, the Trustee or the
Certificateholders shall be deemed parties thereto or shall have any claims,
rights, obligations, duties or liabilities with respect to the Subservicer
in
its capacity as such except as set forth in Section 10.2(d) above.
36
10.3 Rights
of Master Servicer and Trustee.
The
Master Servicer and the Trustee are intended third party beneficiaries of this
Agreement and shall have the right to enforce the obligations of the parties
hereto, including the right to enforce the obligations of the Servicer hereunder
to the extent provided in the Pooling and Servicing Agreement.
10.4 Prior
Agreements.
If
any
provision of this Agreement is inconsistent with any prior Agreements between
the parties, oral or written, the terms of this Agreement shall prevail, and
after the effective date of this Agreement, the relationship and agreements
between Bayview and the Servicer shall be governed in accordance with the terms
of this Agreement.
10.5 Entire
Agreement.
This
Agreement contains the entire agreement between the parties hereto and cannot
be
modified in any respect except by an amendment in writing signed by both
parties.
10.6 Invalidity.
The
invalidity of any portion of this Agreement shall in no way affect the remaining
portions hereof.
10.7 Effect.
Except
as
otherwise stated herein, this Agreement shall remain in effect until all of
the
Mortgage Loans referred to herein, including the underlying security, are
liquidated completely, unless sooner terminated pursuant to the terms
hereof.
10.8 Applicable
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
10.9 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given within three (3) Business Days of the delivery
or
mailing thereof, as the case may be, sent by certified mail, return receipt
requested, or by nationally recognized overnight carrier, to the attention
of
the person named at the address set forth on the signature page
hereof.
37
10.10 Waivers.
Either
Bayview or the Servicer may, upon written consent of both parties, by written
notice to the other (and with the prior written consent of the Master
Servicer):
(a) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the other hereunder; and
(b) Waive
or
modify performance of any of the obligations of the other
hereunder.
The
waiver by either party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other subsequent
breach.
10.11 Binding
Effect.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and assigns.
10.12 Headings.
Headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
[SIGNATURE
PAGE TO FOLLOW]
38
IN
WITNESS WHEREOF, each party has caused this instrument to be signed in its
corporate name on its behalf by its proper officials duly authorized as of
the
day, month and year first above written.
|
Servicer:
|
||
| BAYVIEW LOAN SERVICING, LLC | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxxx | |
|
Name: Xxxxx Xxxxxxxxxx |
||
|
Title:
First
Vice President
|
||
|
Address:
0000
Xxxxx xx Xxxx Xxxx., 0xx
Xxxxx
Xxxxx
Xxxxxx, Xxxxxxx 00000
Tax
Identification No.: 00-0000000
|
||
| Owner: | ||
| BAYVIEW FINANCIAL, L.P. | ||
|
By: BAYVIEW FINANCIAL MANAGEMENT
CORP.,
its General Partner
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| |
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| By: | /s/ Xxxxx Xxxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxxx |
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| Title:First Vice President | ||
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Address:
0000 Xxxxx xx Xxxx Xxxx., 0xx
Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Tax Identification No.: 00-0000000
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EXHIBIT
I
LOANS
TO BE SERVICED
Exhibit
II
INVESTOR
REPORT
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
||||
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 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
|
||||
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
||||
|
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 ($)
|
11
|
||||
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
Exhibit
II
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
||||
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
||||
|
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 ($)
|
11
|
||||
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
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 ($)
|
11
|
||||
|
|
|
|
|
|
||||
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
||||
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
||||
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Exhibit
II
FORM
OF DEFAULT REPORT
Exhibit
: Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|||
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
||||
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
||||
|
CLIENT_NBR
|
Servicer
Client Number
|
|||||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
|
||||
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
|||||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
|||||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
||||
|
PROP_STATE
|
The
state where the property located.
|
|
||||
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
||||
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at
the end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
||||
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
||||
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
||||
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
||||
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
||||
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
||||
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
|||||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
||||
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
MM/DD/YYYY
|
||||
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
||||
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
||||
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
Exhibit
II
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|||
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
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 ($)
|
Exhibit
II-4
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|||
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
|
·
|
ASUM
- Approved
Assumption
|
|
|
·
|
BAP
- Borrower
Assistance Program
|
||
|
·
|
CO
- Charge
Off
|
||
|
·
|
DIL
- Deed-in-Lieu
|
||
|
·
|
FFA
- Formal
Forbearance Agreement
|
||
|
·
|
MOD
- Loan
Modification
|
||
|
·
|
PRE
- Pre-Sale
|
||
|
·
|
SS
- Short
Sale
|
||
|
·
|
MISC
- Anything
else approved by the PMI or Pool
Insurer
|
||
NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
Exhibit
II-4
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
II-4
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
II-4
FORM
OF REALIZED LOSS REPORT
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
Exhibit
II-4
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
(a) 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
II-4
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:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
|
________________
|
(1)
|
|
(2)
|
Interest
accrued at Net Rate
|
_________________
|
(2)
|
|
|
(3)
|
Accrued
Servicing Fees
|
_________________
|
(3)
|
|
|
(4)
|
Attorney's
Fees
|
_________________
|
(4)
|
|
|
(5)
|
Taxes
(see page 2)
|
_________________
|
(5)
|
|
|
(6)
|
Property
Maintenance
|
_________________
|
(6)
|
|
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
_________________
|
(7)
|
|
|
(8)
|
Utility
Expenses
|
_________________
|
(8)
|
|
|
(9)
|
Appraisal/BPO
|
_________________
|
(9)
|
|
|
(10)
|
Property
Inspections
|
_________________
|
(10)
|
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
_________________
|
(11)
|
|
|
(12)
|
Other
(itemize)
|
_________________
|
(12)
|
|
|
Cash
for Keys__________________________
|
_________________
|
(12)
|
||
|
HOA/Condo
Fees_______________________
|
_________________
|
(12)
|
||
|
______________________________________
|
_________________
|
(12)
|
||
|
Total
Expenses
|
$
|
_________________
|
(13)
|
|
|
Credits:
|
||||
|
(14)
|
Escrow
Balance
|
$
|
_________________
|
(14)
|
|
(15)
|
HIP
Refund
|
_________________
|
(15)
|
|
|
(16)
|
Rental
Receipts
|
_________________
|
(16)
|
|
|
(17)
|
Hazard
Loss Proceeds
|
_________________
|
(17)
|
|
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
_________________
|
(18a)
|
|
|
HUD
Part A
|
_________________
|
(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)
|
|
Exhibit
II-4
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
||||||
Exhibit
II-4
EXHIBIT
III
COMMERCIAL
LOANS
Exhibit
III
EXHIBIT
IV
BAYVIEW
SERVICING GUIDELINES
Overview:
the
Servicer and Bayview agree to work jointly in the servicing of certain
non-performing assets. With the exception of FHA and VA mortgages which will
be
serviced completely by the Servicer, all other loans will be identified as
either performing or non-performing acquisitions and will be serviced in
accordance with the terms of the Servicing Agreement (the “Agreement”) and the
Bayview Servicing Guidelines (the “Guide”). In the event of a conflict between
the terms of the Agreement and the Guide, the terms of the Guide shall
prevail.
Performing
Loans:
With
respect to Performing Loans the Servicer shall:
(a) Send
late/reminder notice five (5) days after the due date;
(b) Add
five
(5) day late loans to the collectors calling queues;
(c) Continue
calling on all loans with “non-productive” contacts until contact is
made;
(d) Have
a
“live” collection call with no recordings;
(e) Have
a
designated manager to oversee the collection staff and verify that the loans
are
being collected properly. The manager will review reports and determine if
certain call campaigns are needed to resolve abnormally high delinquency rates.
Bayview will provide the manager with direction if there are certain loans
or
groups of loans that need special attention; and
(f) Demand
Loans on the 60th day of delinquency.
Once
a
loan acquired as a “performing acquisition” has been demanded, the Servicer
shall contact Bayview to obtain approval to proceed with foreclosure; provided,
the loan has not reinstated prior to the expiration of the demand period. Upon
referral to foreclosure, the procedures outlined for non-performing loans should
be followed.
Non-performing
Loans and Servicing Transfers
(a) Exhibit
“A” details the responsibilities of each party with respect to servicing loans
acquired as non-performing and the “performing acquisition” loans in
foreclosure;
(b) Exhibit
“B” provides the guidelines regarding advances for non-performing
loans;
(c) Exhibit
“C” provides the foreclosure timeline standards by state. Foreclosure fees
should not exceed the Agency fee schedule for each state (i.e., the timeline
for
California is the Xxxxxx Xxx standard, therefore foreclosure fees for California
should not exceed Xxxxxx Mae’s); and
(d) Exhibit
“D” contains the servicing transfer guidelines for all loans.
Exhibit
IV
EXHIBIT
“A”
NON-PERFORMING
LOAN SERVICING
|
Owner
|
Servicer
|
|
|
When
the transaction closes, transmits a data field to the Servicer with
the
due diligence results.
|
Receives
and loads preliminary data into servicing system. Loans are identified
as
Bayview non-performing loans.
|
|
|
Coordinates
with seller/servicer regarding transfer (i.e.: goodbye letter, timing,
etc).
|
Receives
data from prior servicer on the transfer date. the Servicer
also:
1.
Loads Level 1 fields from data transfer (UPB, interest rate, paid
to date,
etc.); and
2.
Audits Level 2 fields for any changes.
|
|
|
Approves
all holds on referrals to foreclose.
|
Sets
up and releases loans on the system.
|
|
|
Sends
out a welcome letter and/or a demand letter if the loan is greater
than
thirty (30) days delinquent and not in foreclosure or
bankruptcy.
|
||
|
Continues
collection efforts up to referral of foreclosure.
|
||
|
Loan
referred to Foreclosure
|
Loan
referred to Foreclosure
|
|
|
The
Asset Manager initiates the calling program.
|
Requests
collateral via Bayview’s collateral management within ten (10) days from
the mailing of the demand letter.
|
|
|
The
collateral manager coordinates with the lender, Custodian and the
Servicer
for documents.
|
Assigns
a foreclosure attorney.
|
|
|
The
Asset Manager orders an alternative letter to be mailed.
|
Receives
and prepares collateral and foreclosure package or ships collateral
directly to attorney.
|
|
|
ONCE
A LOAN IS IN FORECLOSURE STATUS BAYVIEW’S FORECLOSURE START LETTER IS
MAILED.
|
||
|
Borrower
is in Bankruptcy
|
Borrower
is in Bankruptcy
|
Exhibit
IV A-1
|
Owner
|
Servicer
|
|
The
Asset Manager monitors bankruptcy progress and/or action, notifies
the
Servicer if action is deemed required, and does the
following:
|
Assigns
current attorney to the case if the borrower is in bankruptcy at
acquisition, and prior foreclosure action was
initiated.
|
|
|
1.
Responds to bankruptcy processor if workout requested.
2.
Handles communication with borrower’s attorney during workout
negotiations.
3.
Notifies the Servicer’s bankruptcy processor as to outcome of
workout.
4.
Orders updated market value through the Servicer’s contact, if
appropriate.
|
Servicer’s
bankruptcy processor handles the file in regards to the standard
policies
and notifies Bayview’s Asset Manager if a workout is
requested.
|
|
|
Notifies
Bayview’s Asset Manager when the loan becomes current or the bankruptcy is
terminated. If the loan is not in foreclosure Bayview’s demand letter
should be mailed. If the loan is in foreclosure, the foreclosure
action is
continued and the bankruptcy processor notifies the foreclosure
processor.
|
||
|
Servicer
completes monthly property inspections.
|
||
|
Foreclosure
process
|
Foreclosure
process
|
|
|
Bayview’s
Asset Manager continues the calling program.
|
The
Foreclosure processor works the file to ensure that Bayview’s timeline and
cost standards are achieved.
|
|
|
The
Asset Manager sends correspondence to borrowers on a minimum thirty
(30)
day basis.
|
The
Foreclosure processor notifies Bayview’s Asset Manager on any and
all-potential problems resulting in delays and/or
holds.
|
|
|
The
Asset Manager prepares and submits foreclosure bid within three (3)
days.
The foreclosure bid is subject to change up to the actual bid
date.
|
Requests
the foreclosure bid 30 days prior to sale date.
|
|
|
The
Asset Manager is responsible for notifying the Servicer if the foreclosure
hold is required due to a pending workout, bankruptcy filing, or
litigation.
|
Requests
approval from Bayview’s Asset Manager for all tax
advances.
|
|
|
The
Asset Manager deals directly with the foreclosure attorney on workouts,
directs the preparation of documents, reviews documents, and approves
and
instructs on execution of documents. During this process, the Asset
Manager coordinates with the Servicer’s foreclosure processor on status of
account.
|
Servicer
completes monthly property
inspections.
|
Exhibit
IV A-2
|
Owner
|
Servicer
|
|
The
Asset Manager prepares workout documents such as forbearance plans,
discount/total debt payoff letters, loan sale letter, etc., and forwards
them to borrower. Upon completion Bayview forwards to them the Servicer’s
contact and makes a comment on the servicing system.
|
The
Foreclosure processor follows-up to ensure receipt of
money.
|
|
|
The
Asset Manager monitors the receipt of money from all
resolutions.
|
||
|
The
Asset Manager approves and/or denies the tax payment.
|
||
|
The
Asset Manager orders updated market value, as appropriate.
|
||
|
The
Asset Manager notifies the Servicer’s contact for property preservation
action, etc.
|
||
|
Foreclosure
Hold
|
Foreclosure
Hold
|
|
|
The
Asset Manager and attorney work with foreclosure attorney to resolve
the
issue. The Asset Manager notifies the Servicer’s foreclosure processor
when the issue is resolved.
|
The
Foreclosure processor awaits notice from Bayview that the action
is
complete.
|
|
|
REO
|
REO
|
|
|
Bayview
monitors the eviction, assigns a broker, orders repair bids, handles
all
aspects of REO liquidation, requests advances for repairs, notifies
the
Servicer of the pending sale, and ensures that all funds are received
and
that the settlement is processed at the Servicer’s.
|
Servicer’s
Eviction specialist handles eviction until complete, notifies Bayview’s
Asset Manager upon eviction, processes advances for repairs, keeps
the
asset on the system until settlement, and pays taxes upon approval
by
Bayview’s Asset Manager.
|
Exhibit IV
A-3
EXHIBIT
“B”
ADVANCES
ON NON-PERFORMING ASSETS
Bayview
shall approve:
FOR
LOANS IN FORECLOSURE
Payment
of real estate tax advances.
Fees
for
litigated/contested foreclosures.
Property
preservation expenses greater than $500.00.
Payment
of co-op maintenance/association fees.
Payment
of IRS or other liens.
FOR
LOANS IN BANKRUPTCY
Fees
for
litigated/contested files and other non-standard bankruptcy costs.
Payment
of back taxes prior to the bankruptcy filing.
Payment
of co-op maintenance/association fees.
Property
preservation expenses greater than $500.00.
Payment
of IRS or other liens.
FOR
REO PROPERTIES
Litigation
fees for evictions or other non-standard attorney fees.
All
repairs to the property.
Cash
for
keys.
Payment
of real estate tax advances.
Payment
of condo minimum and co-op maintenance/association fees.
Payment
of hazard, flood and primary mortgage insurance premiums.
Payment
of advances to pay off other liens.
FOR
ALL SECOND LIENS
Payment
of all other advances.
***BAYVIEW
MUST approve all second liens that are scheduled for foreclosure prior to the
files being sent to a foreclosure attorney.
Second
liens in bankruptcy and foreclosure.
Exhibit
IV B-1
EXHIBIT
“C”
STATE
FORECLOSURE STANDARDS
|
State
|
Foreclosure
Timeframe (in Days)
|
Agency
Standard
|
||
|
AL
|
57
|
XXXXXXX
|
||
|
AK
|
000
|
XXXXXX
|
||
|
XX
|
00
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
98
|
XXXXXXX
|
||
|
DE
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
62
|
XXXXXXX
|
||
|
HI
|
167
|
XXXXXXX
|
||
|
ID
|
146
|
XXXXXXX
|
||
|
IL
|
300
|
XXXXXXX
|
||
|
IN
|
187
|
XXXXXXX
|
||
|
IA
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
150
|
FANNIE
|
||
|
MD
|
101
|
XXXXXXX
|
||
|
ME
|
000
|
XXXXXX
|
||
|
XX
|
00
|
XXXXXXX
|
||
|
XX
|
89
|
XXXXXXX
|
||
|
MO
|
55
|
XXXXXXX
|
||
|
MS
|
00
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
70
|
XXXXXXX
|
||
|
NJ
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
227
|
XXXXXXX
|
||
|
OK
|
150
|
FANNIE
|
||
|
OR
|
150
|
FANNIE
|
Exhibit
IV C-1
|
State
|
Foreclosure
Timeframe (in Days)
|
Agency
Standard
|
|
PA
|
270
|
FANNIE
|
||
|
PR
|
000
|
XXXXXX
|
||
|
XX
|
00
|
XXXXXX
|
||
|
XX
|
180
|
FANNIE
|
||
|
SD
|
000
|
XXXXXX
|
||
|
XX
|
00
|
XXXXXXX
|
||
|
XX
|
58
|
XXXXXXX
|
||
|
UT
|
138
|
XXXXXXX
|
||
|
VA
|
82
|
XXXXXXX
|
||
|
VT
|
233
|
XXXXXXX
|
||
|
WA
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXX
|
||
|
XX
|
000
|
XXXXXXX
|
||
|
XX
|
90
|
FANNIE
|
Exhibit IV
C-2
EXHIBIT
“D”
SERVICING
TRANSFER REQUIREMENTS
Bayview
Servicing Transfer Coordinators monitor the transfer process through loan
set-up. They act in the capacity of liaison between the prior servicer and
the
Servicer to ensure loans transfer timely and are set-up accurately.
Servicer
shall:
1. Work
with
Bayview Servicing Transfer Coordinators to actively pursue any and all
documents, reports, notices, account balances, correspondence, servicing files
and records, or any other files and data held by prior servicers that are
necessary to properly set-up and service the accounts.
2. Ensure
that loans are set-up and ready for servicing on the Servicer’s servicing system
within three days of the transfer date.
3. Track
corporate and escrow advances made by prior servicers which are not paid by
the
Servicer at the transfer date. No payments may be made to prior services for
escrow advances without the prior written approval of Bayview.
4. Provide
the Mortgagors with payment information and coupons within five days of the
transfer date.
5. Place
welcome calls to new Mortgagors within three days of the transfer
date.
6. Provide
Bayview Financial with the following reports:
(a) Trial
Balance Report the day following loan set-up to include: Bayview Acct. No.,
the
Servicer Acct. No., Borrower Name, Seller Name, UPB, Due Date, P&I payment,
Interest Rate, as well as, escrow balances.
(b) Exception
Report the day following loan set-up identifying set-up errors, amortization
errors, missing information, etc.
(c) Welcome
Call Report every Monday to include BV Acct. No., the Servicer Acct. No.,
Borrower Name, Seller Name, transfer date, set-up date, contacts made, contacts
attempted, payments sent to prior servicers, address changes, and other
servicing related issues.
(d) Unidentified
Payment Listing every Monday to include name, address and dollar amount on
payment item, date received, remittance type (money order, cashiers check or
personal check)
(e) Suspense
Report every Monday to include BV Acct. No., the Servicer Acct. No., Borrower
Name, Dollar Amount of Suspense Item, and possible reason.
Exhibit
IV D-1
EXHIBIT
V
POOLING
AND SERVICING AGREEMENT
EXHIBIT
VI
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 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 Servicing Information;
(3) Based
on
my knowledge, all of the 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; and
(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 or 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.
Exhibit
VI-1
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Date: _______________________________
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| By: | ||
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Name:
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Title:
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Exhibit VI-2
EXHIBIT
VII
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”:
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Servicing
Criteria
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Applicable
Servicing Criteria
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Reference
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Criteria
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General
Servicing Considerations
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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X
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1122(d)(1)(ii)
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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.
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X
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
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1122(d)(1)(iv)
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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.
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X
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Cash
Collection and Administration
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1122(d)(2)(i)
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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.
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X
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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X
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1122(d)(2)(iii)
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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.
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X
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1122(d)(2)(iv)
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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.
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X
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1122(d)(2)(v)
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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.
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X
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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X
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1122(d)(2)(vii)
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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.
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X
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Exhibit
VII-1
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Servicing
Criteria
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Applicable
Servicing Criteria
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Reference
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Criteria
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Investor
Remittances and Reporting
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1122(d)(3)(i)
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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.
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X
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1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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X
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1122(d)(3)(iii)
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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.
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X
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1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
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X
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Pool
Asset Administration
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1122(d)(4)(i)
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Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
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X
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1122(d)(4)(ii)
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Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
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X
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1122(d)(4)(iii)
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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.
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X
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1122(d)(4)(iv)
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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.
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X
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1122(d)(4)(v)
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The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
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X
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1122(d)(4)(vi)
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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.
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X
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1122(d)(4)(vii)
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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.
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X
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1122(d)(4)(viii)
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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).
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X
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
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X
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Exhibit
VII-2
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Servicing
Criteria
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Applicable
Servicing Criteria
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|||
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Reference
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Criteria
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1122(d)(4)(x)
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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.
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X
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1122(d)(4)(xi)
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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.
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X
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1122(d)(4)(xii)
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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.
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X
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1122(d)(4)(xiii)
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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.
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X
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
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X
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1122(d)(4)(xv)
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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.
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[NAME
OF SERVICER] [NAME OF SUBSERVICER]
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|
| Date:_______________________________ | ||
| By: | ||
|
Name:
|
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|
Title:
|
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Exhibit
VII-3
