FIRST AMENDED AND RESTATED SERVICING AGREEMENT between Morgan Stanley Mortgage Capital Inc. (Owner) and GMAC Mortgage Corporation, a Pennsylvania corporation (Servicer) Dated as of January 1, 2006
Exhibit
99.16b
FIRST
AMENDED AND RESTATED SERVICING AGREEMENT
between
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
(Owner)
and
GMAC
Mortgage Corporation,
a
Pennsylvania corporation
(Servicer)
Dated
as
of January 1, 2006
TABLE
OF
CONTENTS
|
SECTION
1.
|
DEFINED
TERMS
|
1
|
|
SECTION
2.
|
OWNER’S
RESPONSIBILITIES AND ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
|
14
|
|
2.01
|
Contract
for Servicing
|
14
|
|
2.02
|
[Reserved.]
|
14
|
|
2.03
|
Exclusive
Right to Service
|
14
|
|
2.04
|
[Reserved]
|
14
|
|
2.05
|
Delivery
of Powers of Attorney
|
14
|
|
2.06
|
Record
Title to Mortgage Loans
|
14
|
|
2.07
|
Books
and Records
|
14
|
|
2.08
|
Transfer
of Mortgage Loans
|
14
|
|
SECTION
3.
|
SERVICING
OF THE MORTGAGE LOANS
|
15
|
|
3.01
|
Servicer
to Service.
|
15
|
|
3.02
|
Collection
of Mortgage Loan Payments; Notification of Adjustments
|
16
|
|
3.03
|
Realization
Upon Defaulted Mortgage Loans
|
17
|
|
3.04
|
Establishment
of and Deposits to Collection Account
|
18
|
|
3.05
|
Permitted
Withdrawals from Collection Account
|
19
|
|
3.06
|
Establishment
of and Deposits to Escrow Account
|
20
|
|
3.07
|
Permitted
Withdrawals from Escrow Account
|
21
|
|
3.08
|
Protection
of Accounts
|
22
|
|
3.09
|
Payment
of Taxes, Insurance and Other Charges
|
22
|
|
3.10
|
Maintenance
of Hazard Insurance
|
22
|
|
3.11
|
Maintenance
of Mortgage Blanket Insurance
|
24
|
|
3.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance
|
24
|
|
3.13
|
Inspections
|
25
|
|
3.14
|
Title,
Management and Disposition of REO Property
|
25
|
|
3.15
|
Transfers
of Mortgaged Property
|
26
|
|
3.16
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
26
|
|
3.17
|
[Reserved.]
|
26
|
|
3.18
|
Maintenance
of PMI Policy; Claims.
|
26
|
|
SECTION
4.
|
PAYMENTS
TO OWNER
|
27
|
|
4.01
|
Remittances
|
27
|
|
4.02
|
Reports
to Owner
|
28
|
|
4.03
|
P&I
Advances by Servicer.
|
28
|
|
SECTION
5.
|
GENERAL
SERVICING PROCEDURES
|
29
|
|
5.01
|
Servicing
Compensation
|
29
|
|
5.02
|
Repayment
of Servicing Advances
|
29
|
|
5.03
|
Right
to Examine Servicer Records
|
29
|
|
5.04
|
Annual
Independent Public Accountants’ Servicing Report
|
30
|
|
5.05
|
Statement
of Compliance
|
30
|
i
|
5.06
|
Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999
|
30
|
|
5.07
|
Compliance
with REMIC provisions
|
30
|
|
SECTION
6.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SERVICER AND THE OWNER
|
30
|
|
6.01
|
Representations
of the Servicer
|
30
|
|
6.02
|
Representations
of the Owner
|
32
|
|
SECTION
7.
|
THE
SERVICER
|
32
|
|
7.01
|
[Reserved]
|
32
|
|
7.02
|
Merger
or Consolidation of the Servicer
|
32
|
|
7.03
|
Limitation
on Liability of the Servicer and Others
|
33
|
|
7.04
|
Servicer
Not to Assign
|
33
|
|
SECTION
8.
|
DEFAULT
|
34
|
|
8.01
|
Default
by Servicer
|
34
|
|
8.02
|
Default
by Owner
|
35
|
|
8.03
|
Waiver
of Defaults
|
35
|
|
SECTION
9.
|
TERMINATION
|
36
|
|
9.01
|
Expiration
of Term and Termination with Cause
|
36
|
|
9.02
|
Termination
without Cause
|
37
|
|
9.03
|
Notice
of Servicing Transfers
|
37
|
|
9.04
|
Termination
Process
|
37
|
|
SECTION
10.
|
SUCCESSOR
TO THE SERVICER
|
37
|
|
10.01
|
Effect
of Termination
|
37
|
|
10.02
|
Transfer
of Servicing
|
38
|
ii
|
SECTION
11.
|
NOTICES
|
40
|
|
SECTION
12.
|
SEVERABILITY
CLAUSE
|
42
|
|
SECTION
13.
|
COUNTERPARTS
|
42
|
|
SECTION
14.
|
APPLICABLE
LAW
|
42
|
|
SECTION
15.
|
SUCCESSORS
AND ASSIGNS
|
43
|
|
SECTION
16.
|
WAIVERS
|
43
|
|
SECTION
17.
|
EXHIBITS
|
43
|
|
SECTION
18.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
43
|
|
SECTION
19.
|
REPRODUCTION
OF DOCUMENTS
|
44
|
|
SECTION
20.
|
INDEMNIFICATION
|
44
|
|
SECTION
21.
|
LEGAL
MATTERS
|
46
|
|
21.01
|
Waiver
of Trial by Jury
|
46
|
|
21.02
|
Submission
to Jurisdiction; Waivers
|
47
|
|
SECTION
22.
|
CONFIDENTIALITY
OF INFORMATION
|
47
|
|
SECTION
23.
|
NO
PERSONAL SOLICITATION
|
48
|
|
SECTION
24.
|
MERS
PROVISION
|
48
|
|
SECTION
25.
|
COOPERATION
OF SERVICER WITH A RECONSTITUTION
|
49
|
|
SECTION
26.
|
MATERIAL
CHANGE
|
50
|
|
SECTION
27.
|
FURTHER
AGREEMENTS
|
50
|
|
SECTION
28.
|
ENTIRE
AGREEMENT
|
51
|
|
SECTION
29.
|
RELATIONSHIP
BETWEEN THE PARTIES
|
51
|
|
SECTION
30.
|
LIMITATION
OF DAMAGES.
|
51
|
|
SECTION
31.
|
COMPLIANCE
WITH REGULATION AB.
|
51
|
|
31.01
|
Intent
of the Parties; Reasonableness.
|
51
|
|
31.02
|
Additional
Representations and Warranties of the Servicer.
|
52
|
|
31.03
|
Information
to Be Provided by the Servicer.
|
52
|
|
31.04
|
Servicer
Compliance Statement.
|
56
|
|
31.05
|
Report
on Assessment of Compliance and Attestation.
|
56
|
|
31.06
|
Use
of Subservicers and Subcontractors.
|
57
|
iii
|
31.07
|
Indemnification;
Remedies.
|
58
|
|
EXHIBIT
A
|
COLLECTION
ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
B
|
ESCROW
ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
C
|
CONTENTS
OF LEGAL FILE
|
|
EXHIBIT
D
|
CONTENTS
OF SERVICING FILE
|
|
EXHIBIT
E
|
INFORMATION
INCLUDED ON MORTGAGE LOAN SCHEDULE
|
|
EXHIBIT
F
|
ACKNOWLEDGMENT
AGREEMENT
|
|
EXHIBIT
G
|
FORM
OF INDEMNIFICATION AGREEMENT
|
|
EXHIBIT
H
|
SERVICE
RELEASE AND TRANSFER OF OWNERSHIP AGREEMENT
|
|
EXHIBIT
I
|
ANNUAL
CERTIFICATION
|
|
EXHIBIT
J
|
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
|
|
SCHEDULE I
|
REPORTS
PREPARED BY THE SERVICER
|
|
SCHEDULE II
|
[RESERVED]
|
|
SCHEDULE III
|
PREPAYMENT
PENALTY SCHEDULE
|
4
FIRST
AMENDED AND RESTATED SERVICING AGREEMENT
This
First Amended and Restated Servicing Agreement (this “Agreement”),
dated
as of January 1, 2006 (the “Effective
Date”),
is
entered into by and between Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York
corporation having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
“Owner”),
and
GMAC Mortgage Corporation, a Pennsylvania corporation having an office at 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the “Servicer”).
RECITALS
WHEREAS,
the Owner and the Servicer entered into that certain Servicing Agreement, dated
as of May 20, 2005, and hereby wish to amend and restate such Servicing
Agreement to further clarify the rights and responsibilities of the
parties;
WHEREAS,
the Owner is and will be the originator or sole acquirer of certain Mortgage
Loans (as defined below); and
WHEREAS,
the Servicer desires to service the Mortgage Loans and the Owner and the
Servicer wish to prescribe the manner of the servicing and control of the
Mortgage Loans;
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Owner and the Servicer agree
as follows:
|
SECTION
1.
|
DEFINED
TERMS
|
“Accepted
Servicing Practices”
shall
mean the servicing procedures which (i) conform to customary and usual standards
of practice of mortgage loan servicers servicing mortgage loans similar to
the
Mortgage Loans, (ii) follow the policies and procedures that Servicer applies
to
similar mortgage loans serviced for third parties and for its own account,
(iii)
meet the requirements of Xxxxxx Xxx and Xxxxxxx Mac, (iv) comply with all
applicable laws and follow collection practices with respect to the related
Mortgage Loans that are in all material respects legal and customary, and (v)
subject to clauses (i), (ii) (iii) and (iv), comply with the reasonable requests
of the Owner and the requirements of this Agreement.
“Acknowledgment
Agreement”
shall
mean a
weekly
electronic transmission
from
Owner to
Servicer for Servicing
by
Servicer of the Mortgage Loans specified on the Mortgage Loan Schedule included
with such electronic transmission.
Each
such electronic transmission, upon receipt by Servicer, shall be deemed to
be an
agreement by Servicer to
the
primary form of acknowledgment agreement
between the parties and shall include the information set forth in the
attached Exhibit E
hereto. As a confirmation of the foregoing electronic transmission constitution
acknowledgement agreements, Owner and Servicer shall execute and deliver a
written agreement, on a monthly basis, in the form of
the
attached Exhibit
F
hereto,
which
shall
include a Mortgage Loan Schedule, for
Mortgage Loans that became
subject
to the terms and conditions of this Agreement
through
such electronic transmissions during such month.
5
“Adjustable
Rate Mortgage Loan”
shall
mean a Mortgage Loan which provides for the adjustment of the Mortgage Interest
Rate payable in respect thereto.
“Affiliate”
shall
mean, with respect to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with the Person specified.
“Automated
Boarding”
shall
mean, with respect to a Mortgage Loan, the successful, complete and timely
electronic transfer of the related Electronic File to the Servicing database
of
the Servicer.
“Agreement”
shall
mean this First Amended and Restated Servicing Agreement including all exhibits,
schedules, amendments and supplements hereto.
“Ancillary
Income”
shall
mean all income derived from the Mortgage Loans (other than the (i) Servicing
Fee or (ii) prepayment charges attributable to the Mortgage Loans), including
but not limited to late charges, any interest paid on funds deposited in the
Collection Account and Escrow Account (other than interest on escrowed funds
required by law to be paid to the Mortgagor), fees received with respect to
checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other incidental
fees and charges to the extent not otherwise payable to the Mortgagor under
applicable law or pursuant to the terms of the related Mortgage
Note.
“Assignment
of Mortgage”
shall
mean an assignment of the Mortgage, notice of transfer or equivalent instrument,
in recordable form, which when recorded is sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale of the Mortgage to the Owner or its assignee.
“Best”
shall
have the meaning set forth in Section 3.10.
“Business
Day”
shall
mean a day other than Saturday, Sunday, or any other day on which banks are
authorized or required to remain closed in the States of New York, Connecticut
and Iowa and the Commonwealth of Pennsylvania.
“Closing
Date”
shall
mean for any group of Mortgage Loans, the date upon which such Mortgage Loans
become subject to this Agreement.
“Code”
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
“Commission”
The
United States Securities and Exchange Commission.
“Collection
Account”
shall
mean the separate account or accounts created and maintained by the Servicer
pursuant to Section 3.04 of this Agreement, which shall be entitled “GMAC
Mortgage Corporation, as Servicer, in trust for Xxxxxx Xxxxxxx Mortgage Capital
Inc., as Owner of the Mortgage Loans.”
6
“Compensating
Interest”
shall
mean, with respect to any Remittance Date, the lesser of (x) the Prepayment
Interest Shortfall Amount and (y) the amount of the Servicing Fee for such
Remittance Date.
“Condemnation
Proceeds”
shall
mean all awards, compensation and settlements in respect of a taking of all
or
part of a Mortgaged Property by exercise of the power of condemnation or the
right of eminent domain, whether permanent or temporary, to the extent such
awards, compensation or settlements are not required to be delivered to the
related Obligor in accordance with the terms of the related
Mortgage.
“Confidential
Information”
shall
have its meaning set forth in Section 22 of this Agreement.
“Custodian”
shall
mean Deutsche Bank National Trust Company or any successor thereto.
“Cut-off
Date”
shall
mean, with respect to the transfer of servicing by Owner to Servicer for any
group of Mortgage Loans, the date specified by the Owner to the Servicer in
the
related Mortgage Loan Schedule.
“Deficient
Valuation”
shall
mean, in connection with bankruptcy proceedings with respect to a Mortgagor,
a
binding determination that, based upon the value of the Mortgaged Property,
the
lien of the related Mortgage secures an amount of indebtedness that is less
than
the outstanding amount stated in the related Note.
“Delinquent”
shall
mean if any payment due on the Mortgage Loan is not made by the close of
business on the Due Date for such Mortgage Loan. A Mortgage Loan is “30 days
Delinquent” if such payment has not been received by the close of business on
the Determination Date in the month in which such payment was due. Similarly
for
“60 days Delinquent,” “90 days Delinquent” and so on.
“Demotech”
shall
have the meaning set forth in Section 3.10.
“Depositor”
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
“Determination
Date”
shall
have the meaning, with respect to each Remittance Date, the 15th
day (or,
if such 15th
day is
not a Business Day, the following Business Day) of the month in which such
Remittance Date occurs.
“Distressed
Mortgage Loan”
shall
mean any Mortgage Loan which is ninety (90) days or more
Delinquent.
“Due
Date”
shall
mean the day of the month on which the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
“Due
Period”
shall
mean, with respect to each Remittance Date and any Mortgage Loan, the period
beginning on the second day of the month preceding the month of such Remittance
Date through and including the first day of the month in which such Remittance
Date occurs.
7
“Effective
Date”
shall
be the date this Agreement is executed.
“Electronic
File”
shall
mean a file in transferable electronic format that includes all data essential
to Service a Mortgage Loan, including but not limited to the following
information with regard to each Mortgage Loan:
(i) the
origination loan number,
(ii) customer
name, billing address and street address (if different),
(iii) unpaid
principal balance,
(iv) the
amount of periodic installments and the date(s) to which principal, interest
and
any escrows have been paid,
(v) the
accrued but unpaid interest up to and including the Closing Date,
(vi) a
ledger
history reflecting all receipts and disbursements, and
(vii) data,
consistent with Schedule III
hereto,
sufficient to calculate any applicable late charge, prepayment penalty and
any
other applicable contractual fee, charge or penalty.
“Eligible
Account”
shall
mean (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company, the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1 by Standard
& Poor’s (or its successor in interest) or Prime-1 by Moody’s (or its
successor in interest) at the time any amounts are held on deposit therein,
(ii)
an account or accounts maintained with a federal or state chartered depository
institution or trust company, the deposits in which are fully insured by the
FDIC, or (iii) a trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity. Eligible Accounts may bear interest.
“Eligible
Investments”
shall
mean any one or more of the following obligations or securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by the United States or any agency or instrumentality
thereof, provided
such
obligations are backed by the full faith and credit of the United States, or
Xxxxxxx Mac senior debt obligations, but excluding any of such securities whose
terms do not provide for payment of a fixed dollar amount upon maturity or
call
for redemption;
8
(ii) demand
and time deposits in, certificates of deposit of, bankers’ acceptances issued by
or federal funds sold by any depository institution or trust company (including
the Trustee or its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state authorities,
so long as, at the time of such investment or contractual commitment providing
for such investment, such depository institution or trust company or its
ultimate parent has a short-term uninsured debt rating in one of the two highest
available rating categories of S&P and the highest available rating category
of Moody’s, and provided
that
each such investment has an original maturity of no more than 365
days;
(A) any
other
demand or time deposit or deposit which is fully insured by the FDIC;
and
(B) Xxxxxxx
Mac participation certificates and other Xxxxxxx Mac guaranteed mortgage-backed
securities and senior debt obligations;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated A or higher by S&P and rated A2 or
higher by Moody’s; provided,
however,
that
collateral transferred pursuant to such repurchase obligation must be of the
type described in clause (i) above and must (A) be valued daily at current
market prices plus accrued interest or (B) pursuant to such valuation, be equal,
at all times, to 105% of the cash transferred by the Trustee in exchange for
such collateral and (C) be delivered to the Trustee or, if the Trustee is
supplying the collateral, an agent for the Trustee, in such a manner as to
accomplish perfection of a security interest in the collateral by possession
of
certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by a Rating Agency in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment providing
for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by a Rating
Agency in its highest short-term unsecured debt rating available at the time
of
such investment;
(vi) units
of
money market funds registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee or an affiliate thereof having a rating
by S&P of AAA-G, AAA-m, or AA-m, and if rated by Moody’s, rated Aaa, Aa1 or
Aa2; and
9
(vii) any
other
obligation or security acceptable to the Owner (as certified by a letter from
the Owner to the Servicer);
provided,
that no
such investment shall be an Eligible Investment if such investment evidences
(a)
the right to receive interest-only payments with respect to the obligations
underlying such investments, (b) both principal and interest payments derived
from obligations underlying such investment where the principal and interest
payments with respect to such investment provide a yield to maturity exceeding
one hundred twenty percent (120%) of the yield to maturity at par of such
underlying obligation, or (c) if the instrument may be redeemed at a price
below
the purchase price. Eligible Investments that are subject to prepayment or
call
may not be purchased at a price in excess of par.
“Escrow
Account”
shall
mean the separate trust account or accounts created and maintained by the
Servicer for the deposit and retention of Escrow Payments pursuant to Section
3.06 of this Agreement which shall be entitled “GMAC Mortgage Corporation, as
Servicer, in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc., as Owner of the
Mortgage Loans.”
“Escrow
Mortgage Loans”
shall
mean the Mortgage Loans for which the Servicer has established an Escrow Account
for items constituting Escrow Payments.
“Escrow
Payment”
shall
mean the amounts constituting any of ground-rents, taxes, assessments, water
rates, sewer rents, municipal charges, mortgage insurance premiums, fire and
hazard insurance premiums, condominium charges, and any other payments required
to be escrowed by the Obligor with the Mortgagee pursuant to the Mortgage or
any
other document.
“Event
of Default”
shall
mean any one of the events enumerated in Sections 8.01 and 8.02 of this
Agreement.
“Exchange
Act”
The
Securities Exchange Act of 1934, as amended.
“Xxxxxx
Mae”
shall
mean the Federal National Mortgage Association, or any successor
thereto.
“Xxxxxx
Xxx Guides”
shall
mean the Xxxxxx Mae Seller’s Guide and the Xxxxxx Xxx Servicer’s Guide and all
amendments or additions thereto.
“FDIC”
shall
mean the Federal Deposit Insurance Corporation, or any successor
thereto.
“Fidelity
Bond”
shall
mean a fidelity bond to be maintained by the Servicer pursuant to Section
3.12.
“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, Condemnation
Proceeds, Liquidation Proceeds and any other payments and recoveries which
the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered.
10
“Fitch”
shall
mean Fitch, Inc. or its successors and assigns.
“Fixed
Rate Mortgage Loan”
shall
mean a Mortgage Loan which provides for a fixed Mortgage Interest Rate payable
with respect thereto.
“Xxxxxxx
Mac”
shall
mean the Federal Home Mortgage Loan Mortgage Corporation, or any successor
thereto.
“Xxxxxxx
Mac Guides”
shall
mean the Xxxxxxx Mac Seller’s & Servicer’s Guide and all amendments or
additions thereto.
“GAAP”
shall
mean the generally accepted accounting principles.
“HUD”
shall
mean the United States Department of Housing and Urban Development or its
successors and assigns.
“Indemnified
Party”
shall
have the meaning set forth in Section 20.
“Indemnitor”
shall
have the meaning set forth in Section 20.
“Index”
shall
mean, with respect to each Adjustable Rate Mortgage Loan and with respect to
each related Interest Rate Adjustment Date, the index as specified in the
related Mortgage Note.
“Insurance
Proceeds”
shall
mean, with respect to each Mortgage Loan, all proceeds of any insurance policy
or other insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
“Interest
Rate Adjustment Date”
shall
mean, with respect to an Adjustable Rate Mortgage Loan, the date on which the
Mortgage Interest Rate is adjusted with respect to such Mortgage Loan. The
first
Interest Rate Adjustment Date for each Adjustable Rate Mortgage Loan is set
forth on the Mortgage Loan Schedule.
“IRS”
shall
mean the Internal Revenue Service, or any successor thereto.
“Legal
File”
shall
mean the file containing those items listed in Exhibit C
attached
hereto and incorporated herein, and any additional documents required to be
added thereto pursuant to this Agreement.
“Liquidation
Proceeds”
shall
mean the amounts, other than Insurance Proceeds and Condemnation Proceeds,
received in connection with the liquidation of a defaulted Mortgage Loan through
trustee’s sale, foreclosure sale or otherwise, other than amounts received
following the acquisition of REO Property.
“LPMI
Policy”
A
policy of primary mortgage guaranty insurance issued by an insurer pursuant
to
which the related premium is to be paid by the servicer of the related Mortgage
Loan from payments of interest made by the Mortgagor in an amount as is set
forth in the related Mortgage Loan Schedule.
11
“Manual
Boarding”
shall
mean, with respect to a Mortgage Loan, the manual entry of Mortgage Loan data
onto the Servicing database of the Servicer, which can occur either when there
is no Electronic File relating to a Mortgage Loan or the related Electronic
File
is not transferred in a successful, complete and timely manner.
“Maximum
Rate”
shall
mean, with respect to each Adjustable Rate Mortgage Loan, the amount set forth
in the Note as the maximum Mortgage Interest Rate thereunder.
“MERS”
shall
mean Mortgage Electronic Registration Systems, Inc., a Delaware corporation,
or
any successor in interest thereto.
“MERS
Eligible Mortgage Loan”
shall
mean any Mortgage Loan that has been designated by the Servicer as recordable
in
the name of MERS as nominee for the holder of the related Mortgage
Loan.
“MERS
Mortgage Loan”
shall
mean any Mortgage Loan as to which the related Mortgage, or an Assignment of
Mortgage, has been or will be recorded in the name of MERS, as nominee for
the
holder from time to time of the related Mortgage Note.
“Minimum
Rate”
shall
mean, with respect to each Adjustable Rate Mortgage Loan, the amount set forth
in the Note as the minimum Mortgage Rate Interest thereunder.
“Monthly
Payment”
shall
mean, with respect to any Mortgage Loan and any Due Date, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by
a
Mortgagor under the related Note as originally executed (after adjustment,
if
any, for Principal Prepayments and for Deficient Valuations occurring prior
to
such Due Date, and after any adjustment by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period).
“Moody’s”
shall
mean Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”
shall
mean the mortgage, deed of trust or any other instrument securing the Mortgage
Loan, together with any riders, addenda or amendments thereto.
“Mortgage
File”
shall
collectively mean the Servicing File and the Legal File for any Mortgage
Loan.
“Mortgage
Interest Rate”
shall
mean, with respect to any Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan, as adjusted from time to time in accordance
with
the provisions of the Note in the case of an Adjustable Rate Mortgage
Loan.
“Mortgage
Interest Rate Margin”
shall
mean, with respect to Adjustable Rate Mortgage Loans, the percentage to be
added
to the specified Index identified in the related Note for the purpose of
calculating the applicable Mortgage Interest Rate.
“Mortgage
Loan”
or
“Mortgage
Loans”
shall
mean each of the mortgage loans acquired by the Owner and which are from time
to
time serviced pursuant to the terms of this Agreement and the Mortgage Loans
so
serviced at any point in time being identified on a Mortgage Loan Schedule.
To
the extent applicable and as the context so permits, as used herein, the term
“Mortgage Loan” includes the related Note and Mortgage, and any and all
references to “Mortgage Loan” or “Mortgage Loans” herein shall be deemed to
include any Mortgage Loan that has become an REO Property.
12
“Mortgage
Loan Remittance Rate”
shall
mean, with respect to each Mortgage Loan, the related Mortgage Interest Rate
minus the related Servicing Fee Rate.
“Mortgage
Loan Schedule”
shall
mean the schedule of Mortgage Loans setting forth the information itemized
on
Exhibit
E
(attached hereto and incorporated herein) with respect to such Mortgage Loans,
which schedule shall be attached to the applicable Acknowledgment Agreement
and
deemed to supplement this Agreement and become part hereof on the related
Closing Date.
“Mortgage
Note”
or
“Note”
shall
mean the original executed promissory note or other original evidence of
indebtedness executed by the respective obligor to evidence such obligor’s
indebtedness under the related Mortgage Loan containing all intervening
endorsements, exhibits, riders and amendments thereto, if any, evidencing a
complete chain of Owner from the originator to the Owner.
“Mortgaged
Property”
shall
mean the underlying real property securing a Mortgage Loan.
“Mortgagee”
shall
mean the mortgagee or beneficiary named in the Mortgage and the successors
and
assigns of such mortgagee or beneficiary.
“Mortgagor”
shall
mean the obligor or obligors on a Note.
“Nonrecoverable
Advance”
shall
mean any Servicing Advance or P&I Advance previously made or proposed to be
made in respect of a Mortgage Loan or REO Property which, in the good faith
judgment of the Servicer after taking into account other preexisting liens
and
claims against such proceeds, will not or, in the case of a proposed Servicing
Advance or a proposed P&I Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds, Condemnation Proceeds, or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
“Non-Escrow
Mortgage Loan”
shall
mean any Mortgage Loan which is not an Escrow Mortgage Loan.
“Obligor”
shall
mean any Person obligated for payment of a Mortgage Loan or who has transferred
or assigned any property interest to Owner to secure payment of such Mortgage
Loan.
“Officer’s
Certificate”
shall
mean a certificate signed by a Vice President or an Assistant Vice President
and
by an Assistant Treasurer or Assistant Secretary of the Servicer, and delivered
to the Owner as required by this Agreement.
13
“Owner”
shall
mean Xxxxxx Xxxxxxx Mortgage Capital Inc., or its successor or
assigns.
“Owner
Servicing Guidelines”
shall
mean the Owner’s guidelines for the servicing of Distressed Mortgage Loans and
REO Property, as determined by the Owner from time to time.
“P&I
Advance”
shall
mean the portion of each Monthly Payment delinquent with respect to each
Mortgage Loan at the close of business on the Determination Date and required
to
be advanced by the Servicer pursuant to Section 4.03.
“Periodic
Rate Cap”
shall
mean with respect to each Adjustable Rate Mortgage Loan, the provision in the
Mortgage Note that limits permissible increases and decreases in the Mortgage
Interest Rate on any Interest Rate Adjustment Date.
“Person”
shall
mean any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“PMI
Policy”
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
“Policy”
means
a
PMI Policy or LPMI Policy, as applicable.
“Prepayment
Interest Shortfall Amount”
shall
mean, with respect to each Remittance Date and any Mortgage Loan that was
subject to a Principal Prepayment during any Due Period, the amount, if any,
by
which one month’s interest at the related Mortgage Loan Remittance Rate on such
Principal Prepayment exceeds the amount of interest actually received in
connection with such Principal Prepayment.
“Prime
Rate”
shall
mean the interest rate equal to the prime rate of United States money center
commercial banks as published from time to time in The Wall Street
Journal.
“Principal
Prepayment”
shall
mean any payment or other recovery of principal on a Mortgage Loan which is
received in advance of its scheduled Due Date, (excluding any prepayment penalty
or premium thereon), which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
“Principal
Prepayment Period”
shall
mean with respect to each Remittance Date, the calendar month preceding the
month in which such Remittance Date occurs.
“Qualified
Insurer”
shall
mean an insurance company duly qualified as such under the laws of the states
in
which the Mortgaged Properties are located, duly authorized and licensed in
such
states to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac.
14
“Rating
Agency”
shall
mean Xxxxx’x, Fitch or S&P or their respective successors and assigns. If
such agency and its successors are no longer in existence, “Rating Agency” shall
be such nationally recognized statistical rating agency, or other comparable
Person, designated by the Owner, notice of which designations shall be given
to
the Servicer. References herein to the two highest long term debt rating
categories of a Rating Agency shall mean “A-2” or better and references herein
to the highest short-term debt rating of a Rating Agency shall mean “Prime-1”
and in the case of any other Rating Agency such references shall mean such
rating categories without regard to any plus or minus.
“Reconstitution”
shall
mean any Securitization Transaction or Whole Loan Transfer.
“Reconstitution
Agreements”
shall
have the meaning set forth in Section 25.
“Reconstitution
Date”
shall
have the meaning set forth in Section 25.
“Record
Date”
shall
mean, with respect to each Remittance Date, the last Business Day of the month
immediately preceding the month in which such Remittance Date
occurs.
“Regulation
AB”
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Remittance
Advice Date”
shall
mean the 10th calendar day of each month.
“Remittance
Date”
shall
mean the 18th day of each month, or if such 18th day is not a Business Day,
the
first Business Day immediately following such 18th day.
“REO
Disposition”
shall
mean the final sale by Servicer of any REO Property.
“REO
Property”
shall
mean a Mortgaged Property acquired by the Owner as a result of the liquidation
of a Mortgage Loan.
“Residential
Dwelling”
shall
mean, except as excluded below, any one of the following:
(i) a
one-family dwelling, either attached or detached; or
(ii) a
two- to
four-family dwelling; or
(iii) a
one-family dwelling unit in a condominium project that meets the eligibility
requirements of Xxxxxx Xxx; or
15
(iv) a
one-family dwelling, either attached or detached, in a planned unit development;
or
(v) a
manufactured home recognized as a real property.
“Securities
Act”
The
Securities Act of 1933, as amended.
“Securitization
Transaction”
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
“Seller”
shall
mean the applicable Person from whom Owner acquires one or more Mortgage
Loans.
“Servic(e)(ed)(ing)”
shall
mean any function performed, to be performed or allowed to be performed by
Servicer with regard to the Mortgage Loans pursuant to Accepted Servicing
Practices and the terms and conditions of this Agreement.
“Servicer”
shall
mean GMAC Mortgage Corporation, a Pennsylvania corporation, and its successors
in interest, and any successor Servicer appointed hereunder.
“Servicer
Information”
As
defined in Section 31.07(a).
“Servicing
Advances”
shall
mean all customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorney’s fees and expenses) incurred by the Servicer in
the performance of its servicing obligations hereunder related to each Mortgage
Loan (other than any P&I Advances), including, but not limited to, the cost
of (i) the preservation, restoration, inspection and protection of the Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
(iii) the management and liquidation of the REO Property and (iv) compliance
with the obligations under Sections 3.01, 3.03, 3.09, and 3.14.
“Servicing
Compensation”
shall
mean the Servicing Fee and other amounts of additional servicing compensation
to
which the Servicer is entitled pursuant to Section 5.01 of this
Agreement.
“Servicing
Criteria”
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
“Servicing
Fee”
shall
mean, with respect to each Mortgage Loan, the amount of the annual fee the
Owner
shall pay to the Servicer, which shall, for each month, be equal to one-twelfth
of (i) the product of the Servicing Fee Rate and (ii) the Stated Principal
Balance of such Mortgage Loan. Such fee shall be payable monthly, computed
on
the basis of the same principal amount and period respecting which any related
interest payment on a Mortgage Loan is computed, and shall be pro rated (based
upon the number of days of the related month the Servicer so acted as Servicer
relative to the number of days in that month) for each part thereof. The
obligation of the Owner to pay the Servicing Fee is limited to, and payable
solely from, the interest portion of the related Monthly Payments, Insurance
Proceeds, Condemnation Proceeds and REO Disposition Proceeds collected by the
Servicer.
16
“Servicing
Fee Rate”
With
respect to each Mortgage Loan, a per annum rate as set forth in the Mortgage
Loan Schedule.
“Servicing
File”
shall
mean the file containing those items listed in Exhibit D
attached
hereto and incorporated herein, and any additional documents required to be
added thereto pursuant to this Agreement.
“Servicing
Transfer Date”
shall
mean the effective date of a transfer of servicing from the Servicer to a
Successor Servicer, as provided in Section 10 of this Agreement.
“Standard
& Poor’s”
or
“S&P”
shall
mean Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or its successor in interest.
“Stated
Principal Balance”
shall
mean, as to each Mortgage Loan as to any date of determination, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts previously distributed to the Owner with
respect to the related Mortgage Loan representing payments or recoveries of
principal, or advances in lieu thereof on such Mortgage Loan.
“Static
Pool Information”
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
“Static
Pool Party”
As
defined in Section 31.03(g).
“Subcontractor”
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
“Subservicer”
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
“Successor
Servicer”
shall
have the meaning as set forth in Section 10.02(a) below.
“Transaction
Servicer”
As
defined in Section 31.03(c).
17
“Whole
Loan Transfer”
shall
mean any sale or transfer of some or all of the Mortgage Loans other than a
Securitization Transaction.
|
SECTION
2.
|
OWNER’S
RESPONSIBILITIES AND ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
|
2.01 Contract
for Servicing
.
The
Owner, by execution and delivery of this Agreement and the related
Acknowledgment Agreement (including a related Mortgage Loan Schedule), does
hereby contract with the Servicer for the Servicing of the Mortgage Loans
subject to the terms of this Agreement. The Owner may request the Servicer
to
Service certain additional Mortgage Loans from time to time acquired by it
through bulk acquisitions or other means, and each such request shall be
evidenced by execution of a separate Acknowledgment Agreement (including a
related Mortgage Loan Schedule) in the form attached hereto as Exhibit F.
2.02 [Reserved.]
2.03 Exclusive
Right to Service
.
Subject
to the termination provisions set forth in Section 9, the Servicer shall have
the exclusive right to Service the Mortgage Loans from and after the related
Closing Date and during the term of this Agreement, unless Servicer expressly
agrees otherwise in writing.
2.04 [Reserved].
2.05 Delivery
of Powers of Attorney
.
If
reasonably required by the Servicer, the Owner shall furnish the Servicer with
any powers of attorney and other documents necessary to enable the Servicer
to
carry out its servicing and administrative duties under this Agreement.
2.06 Record
Title to Mortgage Loans
.
Record
title to the Mortgage Loans shall be retained by the Owner or its designee.
The
ownership of each Mortgage Loan, including the Mortgage Note, the Mortgage,
the
contents of the related Mortgage File and all rights, benefits, proceeds and
obligations arising therefrom or in connection therewith, is vested in the
Owner. All rights arising out of the Mortgage Loans including, but not limited
to, all funds received on or in connection with the Mortgage Loans and all
records or documents with respect to the Mortgage Loans prepared by or which
come into the possession of the Servicer shall be received and held by the
Servicer in trust for the benefit of the Owner as the Owner of the Mortgage
Loans.
2.07 Books
and Records
.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loan which shall be clearly marked
to
reflect the ownership by the Owner of each Mortgage Loan.
2.08 Transfer
of Mortgage Loans.
(a) The
Servicer shall keep at its Servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer shall note
transfers of Mortgage Loans. For the purposes of this Agreement, the Servicer
shall be under no obligation to deal with any Person but the Owner with respect
to this Agreement or the Mortgage Loans unless the books and records show such
Person as the owner of the Mortgage Loans. Upon receipt of a written notice
from
the Owner of the assignment of any Mortgage Loans and this Agreement with
respect to such Mortgage Loans, the Servicer shall xxxx its books and records
to
reflect the ownership of the Mortgage Loans by such assignee, and the previous
Owner shall be released from its obligations hereunder to the extent such
obligations relate to Mortgage Loans sold by the Owner. Except as set forth
in
subsection (b) of this Section 2.08 or in Section 9, all Mortgage Loan transfers
shall be subject to and Serviced pursuant to this Agreement or as mutually
agreed upon by the parties as evidenced by The Service Release and Transfer
of
Ownership Agreement attached hereto as Exhibit
H.
18
(b) The
Owner
shall have the right at any time to transfer (i) one or more Mortgage Loans
without assigning this Agreement to a successor Owner or (ii) the servicing
with
respect to one or more Mortgage Loans. In connection with any such transfer,
the
terms of this Agreement shall no longer govern the servicing of such Mortgage
Loans from and after the Servicing Transfer Date and Section 9.02 shall apply
to
any such transfer.
|
SECTION
3.
|
SERVICING
OF THE MORTGAGE LOANS
|
3.01 Servicer
to Service.
(a) The
Servicer, as an independent contractor, shall administer the Mortgage Loans
from
and after the related Closing Date and shall be responsible for Servicing the
Mortgage Loans as of the related Closing Date, and shall have full power and
authority, acting alone, to do any and all things in connection with such
Servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices, including (without limitation) the execution and delivery, on behalf
of itself and the Owner, (i) of all agreements and instruments of subordination,
of satisfaction, discharge or cancellation, and of partial or full release;
and
(ii) of all other comparable agreements and instruments with respect to the
Mortgage Loans and with respect to the Mortgaged Properties. The Servicer may
take any and all actions relative to the Servicing and administration of the
Mortgage Loans that are consistent with Accepted Servicing Practices;
provided,
however,
that
all Distressed Mortgaged Loans shall be transferred by the Owner when a Mortgage
Loan is 90 days delinquent. In the event, the Owner chooses to have the Servicer
service Distressed Mortgage Loans, the Owner Servicing Guidelines shall be
mutually agreed upon between the Servicer and the Owner pursuant to a side
agreement. The Servicer shall provide Owner the reports described on
Schedule
I,
attached hereto and made a part hereof.
(b) Without
limiting the foregoing, the Servicer may waive, modify or vary any term of
any
Mortgage Loan or consent to the postponement of strict compliance with any
such
term or in any manner grant indulgence to any Mortgagor,
if in
the Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence could be in the best interest of the Owner. The
Servicer shall not take any such action if that action will cause a Mortgage
Loan not to constitute a “qualified mortgage” within the meaning of Section
860(G)(a)(3) of the Code.
19
(c) The
Servicer shall not waive any prepayment charge in full or in part unless
such waiver would maximize recovery of total proceeds taking into account the
value of such prepayment charge and the related Mortgage Loan, and doing so
is
standard and customary practice in Servicing similar Mortgage Loans. In
addition, the Servicer may waive a prepayment charge on any Mortgage Loan in
full or in part if the Servicer has determined, in its reasonable business
judgment and in connection with the conduct of its business in accordance with
applicable requirements, that the prepayment charge should be waived. If such
waiver is primarily for the benefit of the Servicer,
the
waived amount of such prepayment charge
shall be
immediately deposited in the Collection Account by the Servicer out of its
own
funds,
without
any
right
of
reimbursement,
therefor. The Servicer shall administer the enforcement and collection of all
prepayment charges
in
accordance with the related mortgage documents or applicable state or federal
law and shall provide to the related Mortgagor any reports required to be
provided to them in connection therewith.
Servicer’s
enforcement and administration of prepayment charges shall, where legally
possible, be in accordance with Schedule III,
attached hereto and incorporated herein; provided, however, the Servicer shall
confirm that the related prepayment charge listed on Schedule III matches the
prepayment change in the Mortgage Note prior to enforcing such prepayment charge
and shall act in accordance with the Mortgage Note in the event of a
discrepancy. Said Schedule III
shall be
compiled and provided by the Owner to the Servicer, on or prior to the related
Closing Date, and shall set forth each type of prepayment penalty provision
found in the Mortgage Loans and the method to be used by Servicer for
calculating each such provision. Where an electronically transferable file
contains insufficient data, or no data, to calculate any applicable prepayment
penalty or other contractual charge, fee or penalty, Transfer of such file
may
be accomplished only by Manual Boarding. In such case, and if such data cannot
be obtained from Schedule III,
Owner
shall be given a reasonable opportunity, not to exceed three business days
from
the discovery of the deficiency, to interpret the applicable prepayment penalty
or other contractual charge, fee or penalty provision, and to inform Servicer
of
such interpretation. Should Owner fail to provide such interpretation to
Servicer within the allotted time period, the Servicer shall make a good faith
effort to accurately review the applicable Mortgage Loan documents and interpret
the applicable prepayment penalty or other contractual charge, fee or penalty
provision. Similarly, if Owner fails to provide Schedule III
on or
prior to the related Closing Date, Servicer shall enforce, administer and
collect such prepayment charges in accordance to the policies and procedures
it
applies to similar Mortgage Loans serviced for its own account. Servicer may
rely on any data provided by Owner on Schedule III
or
otherwise, and, in the event Owner has failed to timely provide such data to
Servicer, Servicer may rely on its own interpretations made on behalf of Owner
as set forth above.
3.02 Collection
of Mortgage Loan Payments; Notification of Adjustments.
The Servicer
shall proceed diligently to collect all payments due under each of the Mortgage
Loans when the same shall become due and payable and with respect to Escrow
Mortgage Loans only, shall take special care in ascertaining and estimating
Escrow Payments and all other charges that will become due and payable with
respect to the Mortgage Loans and each related Mortgaged Property, to the end
that the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
20
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust the
Mortgage Interest Rate on the related Interest Rate Adjustment Date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. Upon the discovery by the Servicer or the receipt
of notice from the Owner that the Servicer has failed to adjust a Mortgage
Interest Rate or Monthly Payment in accordance with the terms of the related
Mortgage Note, the Servicer shall immediately deposit in the Collection Account
from its own funds, without any right to reimbursement, the amount of any
interest loss or deferral caused the Owner thereby.
3.03 Realization
Upon Defaulted Mortgage Loans.
(a) In
the
event that any payment due under any Mortgage Loan is not paid when the same
becomes due and payable, or in the event the Mortgagor fails to perform any
other covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, the Servicer shall take such action
(B)
as it
shall deem to be in the best interest of the Owner (which shall include, but
not
be limited to, Mortgage Loan liquidation and short sales) and (C)
that is
consistent with any related PMI Policy. In connection with a foreclosure or
other conversion, the Servicer shall exercise such rights and powers vested
in
it hereunder and use the same degree of care and skill in its exercise as it
customarily employs with respect to mortgage loans Serviced for its own account,
giving due consideration to Accepted Servicing Practices, including, without
limitation, advancing funds for the payment of taxes and insurance premiums.
During this period and in the administration of such defaulted Mortgage Loans,
the Servicer shall be responsible for making all customary Servicing Advances.
Notwithstanding anything to the contrary contained herein, in no event will
the
Servicer make a Servicing Advance if it determines, using Accepted Servicing
Practices, that such Servicing Advance would be a Nonrecoverable Advance. The
determination by the Servicer that it has made a Nonrecoverable Advance or
that
any proposed Servicing Advance, if made would constitute a Nonrecoverable
Advance, shall be evidenced by an officer’s certificate of the Servicer
delivered to the Owner. Servicer shall be reimbursed for all Servicing Advances
made with respect to such defaulted Mortgage Loans from the Collection Account
pursuant to Section 3.05 herein.
(b) Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Servicer has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes or if the Mortgage Property poses any
type of environmental risks or if the Owner otherwise requests an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector, the Servicer shall cause such inspection to occur solely at the
expense of the Owner. If the Servicer shall advance or use its own money to
effect such environmental inspection, the Servicer shall reimburse itself from
the Collection Account. If the Collection Account fails to maintain sufficient
funds to reimburse the Servicer, the Owner shall directly reimburse the Servicer
of such advance within five (5) Business Days upon receipt of an invoice from
the Servicer.
21
(c) Upon
completion of an environmental inspection, the Servicer shall promptly provide
the Owner with the environmental inspection report. After reviewing the
environmental inspection report, the Owner shall determine how the Servicer
shall proceed with respect to the Mortgaged Property. In the event (i) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous, toxic substances or wastes or poses environmental
risks of any kind, and (ii) the Owner directs the Servicer, in writing, to
proceed with foreclosure or acceptance of a deed in lieu of foreclosure, the
Servicer shall be reimbursed for all reasonable costs associated with such
foreclosure or acceptance of a deed in lieu of foreclosure and any related
environmental clean up costs, as applicable, from the related Liquidation
Proceeds, or if the Liquidation Proceeds are insufficient to fully reimburse
the
Servicer, the Servicer shall be entitled to be reimbursed from amounts in the
Collection Account pursuant to Section 3.05 herein and in the event amounts
in
the Collection Account are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to reimbursement directly from the Owner within
five
(5) Business Days upon receipt of an invoice from the Servicer. In
the event the Owner directs the Servicer, in writing, not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all Servicing Advances made with respect to the related
Mortgaged Property from the Collection Account pursuant to Section 3.05 herein
and in the event amounts in the Collection Account are insufficient to fully
reimburse the Servicer, the Servicer shall be entitled to reimbursement from
the
Owner.
3.04 Establishment
of and Deposits to Collection Account
.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Collection Accounts, if
necessary. Each Collection Account shall be an Eligible Account. Funds deposited
in the Collection Account may be withdrawn by the Servicer in accordance with
Section 3.05 herein. The creation of any Collection Account shall be
evidenced by a letter agreement in the form of Exhibit
A
attached
hereto and incorporated herein. The Servicer shall deposit in the Collection
Account on a daily basis in accordance with its Accepted Servicing Practices,
and retain therein, the following collections received by the Servicer and
payments made by the Servicer on or after the related Closing Date through
the
Servicing Transfer Date:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) [Reserved];
(iii) all
payments on account of interest on the Mortgage Loans minus all Servicing Fees
attributable thereto;
(iv) all
Liquidation Proceeds;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 3.10 herein (other than proceeds to be held in the Escrow Account and
applied to the restoration and repair of the Mortgaged Property or released
to
the Mortgagor in accordance with Sections 3.14 and 3.18 herein);
22
(vi) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or release to the Mortgagor;
(vii) any
amount required to be deposited in the Collection Account pursuant to
Section 3.01, 3.08 or 3.10 herein:
(viii) any
amounts required to be deposited by the Servicer pursuant to Section 3.11
herein in connection with the deductible clause in any blanket hazard insurance
policy;
(ix) with
respect to each Principal Prepayment, the Prepayment Interest Shortfall Amount,
if any, for the month of distribution. Such deposit shall be made from the
Servicer’s own funds; and
(x) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds.
The
foregoing requirements for deposit into the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of Servicing Fees or Ancillary Income
need not be deposited by the Servicer into the Collection Account. Any interest
paid on funds deposited in the Collection Account by the depository institution
shall accrue to the benefit of the Servicer and the Servicer shall be entitled
to retain and withdraw such interest from the Collection Account pursuant to
Section 3.05 herein. Additionally, any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like
sources,
shall
accrue to the benefit of the Servicer.
3.05 Permitted
Withdrawals from Collection Account.
The
Servicer shall, from time to time, withdraw funds from the Collection Account
for the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in Section
4.01 herein;
(ii) to
reimburse itself for all P&I Advances of the Servicer’s funds made pursuant
to Section 4.03, it being understood that, in the case of any such
reimbursement, the Servicer’s rights hereto shall be prior to the rights of the
Owner under this Section 3.05; provided,
however,
that
the Servicer’s right to reimburse itself pursuant to this subclause (ii) with
respect to any Mortgage Loan being limited to amounts received on the related
Mortgage Loan (including without limitation, late recoveries of payments from
the Mortgagor, Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds with respect to such Mortgage Loan to the extent collected) which
represent late payments of principal and/or interest respecting which any such
P&I Advance was made; provided, further, that if such amounts are
insufficient to reimburse the Servicer, or if the Servicer determines, using
Accepted Servicing Practices, that such xxxxxxxxxxxx X&X Advance would be a
Nonrecoverable Advance the Servicer shall be entitled to reimburse itself from
other funds in the Collection Account;
23
(iii) to
reimburse itself for all unreimbursed Servicing Advances, it being understood
that, in the case of any such reimbursement, the Servicer’s right thereto shall
be prior to the rights of the Owner under this Section 3.05; provided,
however,
that
the Servicer’s rights to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds; provided, further, that if such
amounts are insufficient to reimburse the Servicer, or if the Servicer
determines, using Accepted Servicing Practices, that such unreimbursed Servicing
Advance would be a Nonrecoverable Advance the Servicer shall be entitled to
reimburse itself from other funds in the Collection Account;
(iv) to
pay
itself interest on funds deposited in the Collection Account pursuant to Section
3.08 and to pay itself the Servicing Fees pursuant to Section 5.01 of this
Agreement (less Compensating Interest payments required to be made by the
Servicer hereunder);
(v) [Reserved];
(vi) to
pay or
to reimburse itself for advances with respect to expenses incurred in connection
with any Mortgage Loan, including, but not limited to environmental expenses
pursuant to Sections 3.03(b) and (c) herein but only to the extent the
Servicer is entitled to reimbursement therefore under this
Agreement;
(vii) to
pay
any amount required to be paid pursuant to Section 3.14 related to any REO
Property and Section 3.16 related to the satisfaction of the Mortgage
Loan;
(viii) to
invest
funds in certain Eligible Investments in accordance with Section 3.08
herein;
(ix) to
transfer funds to another Eligible Account in accordance with Section 3.08
herein;
(x) to
clear
and terminate the Collection Account upon the termination of this Agreement;
and
(xi) to
withdraw funds deposited in error.
The
Servicer shall keep and maintain separate accounting, on a loan-by-loan basis,
for the purpose of justifying any withdrawal from the Collection Account
pursuant to subsections (ii), (iii), (iv), (vi) and (vii)
above.
3.06 Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts. Each Escrow Account shall be an Eligible Account. Funds deposited
in
the Escrow Account may be withdrawn by the Servicer in accordance with Section
3.07 of this Agreement. The creation of any Escrow Account shall be evidenced
by
a letter agreement in the form of Exhibit
B
attached
hereto and incorporated herein. A copy of such letter agreement shall be
furnished to the Owner and, upon request, to any subsequent Owner of the
Mortgage Loans.
24
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
in
accordance with its standard practice, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.07
of
this Agreement. The Servicer shall retain any interest paid on funds deposited
in the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. To the extent
required by law, the Servicer shall pay interest on escrowed funds to the
Mortgagor, notwithstanding that the Escrow Account may be non-interest bearing
or that interest paid thereon is insufficient for such purposes.
3.07 Permitted
Withdrawals from Escrow Account
.
The
Servicer shall, from time to time, withdraw funds from the Escrow Account for
the following purposes:
(i) to
effect
payments of ground rents, taxes, assessments, water rates, condominium charges,
fire and hazard insurance premiums or other items constituting obligations
with
respect to which Escrow Payments are collected for the related
Mortgage;
(ii) to
reimburse itself for any Servicing Advance made by it with respect to a related
Mortgage Loan, but only from amounts received on the related Mortgage Loan
which
represent late collections of Escrow Payments thereunder;
(iii) to
refund
to the related Mortgagor any funds found to be in excess of the amounts required
under the terms of the related Mortgage Loan;
(iv) for
transfer to the Collection Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restore or repair of the Mortgaged Property in accordance with
the procedures outlined in Section 3.14 herein;
(vi) to
pay to
the Servicer, or the related Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
25
(viii) to
withdraw funds deposited in error.
3.08 Protection
of Accounts.
The
Collection Account and Escrow Account shall be Eligible Accounts at all times.
The Servicer may transfer the Collection Account or the Escrow Account to a
different Eligible Account from time to time. The Servicer shall bear any
expenses, losses or damages sustained by the Owner because the Collection
Account and/or the Escrow Account are not Eligible Accounts.
Amounts
on deposit in the Collection Account may at the option of the Servicer be
invested in Eligible Investments. Any such Eligible Investment shall be made
in
the name of the Servicer in trust for the benefit of the Owner. All income
on or
gain realized from any such Eligible Investment shall be for the benefit of
the
Servicer and may be withdrawn from the Collection Account at any time by the
Servicer. Any losses incurred in respect of any such investment shall be
deposited in the Collection Account, by the Servicer out of its own
funds
immediately as realized.
3.09 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Escrow Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property, the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and, shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. The Servicer assumes full responsibility for
the timely payment of all such bills and shall effect timely payment of all
such
charges irrespective of each Mortgagor’s faithful performance in the payment of
same or the making of the Escrow Payments, and the Servicer shall make advances
from its own funds to effect such payments. With respect to Non-Escrow Mortgage
Loans, the Servicer shall use reasonable efforts consistent with Accepted
Servicing Practices to determine that any such payments are made by the
Mortgagor at the time they first became due and that such Mortgage is not left
uninsured and shall make advances from its own funds to effect any such
delinquent payments to avoid the lapse of insurance coverage on the Mortgaged
Property or to avoid the sale or other loss of the Mortgage Property to a tax
lien. Such advances made by the Servicer shall be considered Servicing Advances
subject to reimbursement pursuant to Section 3 herein.
3.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
that conforms with the Xxxxxx Xxx Guides and Xxxxxxx Mac Guides against loss
by
fire, hazards of extended coverage and such other hazards as are required to
be
insured pursuant to the Xxxxxx Xxx Guides or Xxxxxxx Mac Guides, in an amount
which is at least equal to the least of: (i) 100% of the maximum insurable
value of the improvements securing such Mortgage Loan; or (ii) the greater
of (a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds thereof shall be sufficient to prevent the Mortgagor
or
the loss payee from becoming a co-insurer; or (iii) the amount determined by
applicable federal or state law. If the Mortgagor fails to provide Mortgage
Loan
hazard insurance coverage after thirty (30) days of Servicer’s written
notification, the Servicer may force place such hazard insurance coverage on
the
Mortgagor’s behalf. Any out-of-pocket expense or advance made by the Servicer on
such force placed hazard insurance coverage shall be deemed a Servicing
Advance.
26
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Federal Emergency Management
Agency (“FEMA”)
as
having special flood hazards (and such flood insurance has been made available)
a flood insurance policy meeting the requirements of the current guidelines
of
the Federal Insurance Administration is in effect with an insurance carrier
that
meets the requirements of the Xxxxxx Xxx Guides and the Xxxxxxx Mac Guides
in an
amount representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured), and (ii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the FEMA Guides that a Mortgaged Property is located in a special
flood hazard area and is not covered by flood insurance or is covered in an
amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Servicer shall notify the related Mortgagor to obtain
such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Servicer shall immediately force place the required flood insurance on
the
Mortgagor’s behalf. Any out-of-pocket expense or advance made by the Servicer on
such force placed flood insurance coverage shall be deemed a Servicing
Advance.
If
a
Mortgage is secured by a unit in a condominium project, the Servicer shall
verify that the coverage required of the Owner’s association, including hazard,
flood, liability, and fidelity coverage is being maintained in accordance with
the current Xxxxxx Xxx requirements, and secure from the Owner’s association its
agreement to notify the Servicer promptly of any change in the insurance
coverage or of any condemnation or casualty loss that may have a material effect
on the value of the Mortgaged Property as security.
In
the
event the Owner or the Servicer shall determine that the Mortgaged Property
should be insured against loss or damage by hazards and risks not covered by
the
insurance required to be maintained by the Mortgagor pursuant to the terms
of
the Mortgage, the Servicer may, at its discretion, communicate with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Servicer as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least thirty (30) days prior written notice of any
cancellation, reduction in amount or material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Servicer
shall not accept any such insurance policies from insurance companies unless
such companies are acceptable under the Xxxxxx Mae Guides and Xxxxxxx Mac Guides
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Servicer shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property, and that
they properly describe the property address. The Servicer shall furnish to
the
Mortgagor a formal notice of expiration of any such insurance in conformance
with Servicer’s standard practices; provided, however, that in the event that no
such notice is furnished by the Servicer, the Servicer shall ensure that
replacement insurance policies (whether forced placed or other insurance
policies) are in place with the required coverage and the Servicer shall be
solely liable for any losses in the event coverage is not provided.
27
Pursuant
to Section 3.04 of this Agreement, any amounts collected by the Servicer under
any such policies (other than amounts to be deposited in the Escrow Account
and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to
the
Mortgagor, in accordance with the Servicer’s normal Servicing procedures as
specified in Section 3.14 of this Agreement) shall be deposited in the
Collection Account subject to withdrawal pursuant to Section 3.05 of this
Agreement.
3.11 Maintenance
of Mortgage Blanket Insurance.
In the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 3.10 of this
Agreement and
otherwise complies with all other requirements of Section 3.10 of this
Agreement, it shall conclusively be deemed to have satisfied its obligations
as
set forth in Section 3.10 of this Agreement. Any amounts collected by the
Servicer under any such policy relating to a Mortgage Loan shall be deposited
in
the Collection Account or Escrow Account subject to withdrawal pursuant to
Section 3.05 or 3.07 of this Agreement. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
3.10 of this Agreement, and there shall have been a loss which would have been
covered by such policy, the Servicer shall deposit in the Collection Account
at
the time of such loss the amount not otherwise payable under the blanket policy
because of such deductible clause, such amount shall be deposited from the
Servicer’s funds, without reimbursement therefor. Upon request of the Owner, the
Servicer shall cause to be delivered to such Owner a certified true copy of
such
policy and a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without thirty (30) days’ prior
written notice to the Owner.
3.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Servicer shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Mortgage Loans (“Servicer
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond
and Errors and Omissions Insurance Policy also shall protect and insure the
Servicer against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 3.12 requiring such Fidelity
Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to
the
corresponding amounts required by Xxxxxx Mae in the Xxxxxx Xxx Guides or by
Xxxxxxx Mac in the Xxxxxxx Mac Guides.
28
3.13 Inspections.
The
Servicer shall inspect the Mortgaged Property as often as deemed necessary
by
the Servicer to assure itself that the value of the Mortgaged Property is being
preserved and which is both consistent with Accepted Servicing Practices and
with any requirements of the primary mortgage guaranty insurer.
3.14 Title,
Management and Disposition of REO Property.
In the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Servicer, or in the event the Servicer is not authorized or
permitted to hold title to real property in the state where the REO Property
is
located, or would be adversely affected under the “doing business” or tax laws
of such state by so holding title, the deed or certificate of sale shall be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer from any attorney duly licensed
to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Servicer shall acknowledge in writing
that such title is being held as nominee for the Owner.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Owner solely for the purpose of its prompt disposition and sale. The Servicer,
either itself or through an agent selected by the Servicer, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, in the same locality as the REO Property is located and consistent
with
the Owner Servicing Guidelines. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Owner.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage, liability insurance, and flood insurance in accordance with
the provisions of Section 3.09 and 3.10 hereof.
The
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Owner. Prior to the disposition of the REO Property, the Owner
may provide a valuation for the REO Property to the Servicer no later than
three
(3) Business Days after notification of the Owner by the Servicer. The proceeds
of sale of the REO Property shall be promptly deposited in the Collection
Account. As soon as practical thereafter the expenses of such sale shall be
paid
and the Servicer shall reimburse itself for any related xxxxxxxxxxxx X&X
Advances, Servicing Advances, unpaid Servicing Fees, and on the Remittance
Date
immediately following the date on which such sale proceeds are received the
net
cash proceeds of such sale remaining in the Collection Account shall be
distributed to the Owner.
29
The
Servicer shall advance funds necessary for the proper operation, management
and
maintenance of the REO Property, including the cost of maintaining any hazard
or
Flood insurance pursuant to this Section 3.14 and the fees of any property
manager appointed by the Servicer, shall be deemed “Servicing Advances.” The
Servicer shall make monthly distributions on each Remittance Date to the Owner
of the net cash flow from the REO Property (which shall equal the revenues
from
such REO Property net of the expenses described in this Section 3.14 and of
any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
3.15 Transfers
of Mortgaged Property.
The
Servicer shall enforce any “due-on-sale” provision contained in any Mortgage or
Mortgage Note and to deny assumption by the person to whom the Mortgaged
Property has been or is about to be sold whether by absolute conveyance or
by
contract of sale, and whether or not the Mortgagor remains liable on the
Mortgage and the Mortgage Note; provided that, if the Servicer determines that
a
due-on-sale provision is not enforceable or that either a decision not to
exercise the due-on-sale provision or a decision to permit an assumption of
the
Mortgage Loan is in the best interests of the Owner, it may, with the prior
consent of the primary mortgage guaranty insurer, if applicable, permit such
conveyance of the Property without resort to the due-on-sale clause or permit
such assumption, as applicable, with notice to the Owner.
3.16 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer of
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer may notify the Owner, which notification shall
include a statement to the effect that all amounts received or to be received
in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.04 herein have been or will be so
deposited, and may request delivery to it of the Mortgage File. In addition,
from time to time and as appropriate for the servicing or foreclosure of a
Mortgage Loan, including for this purpose collection under any insurance policy,
the Servicer may request delivery to it by Custodian of the related Mortgage
File. Upon receipt of such notification and request pursuant to this Section
3.16, the Owner shall request that the Custodian, within five (5) Business
Days,
release the related Mortgage File to the Servicer. Should Servicer be called
upon or elect to assist in obtaining any documents or information which may
be
missing from the Legal File, Owner shall be required to reimburse Servicer
for
any reasonable expense incurred by Servicer in providing that assistance,
whether or not Servicer is ultimately successful in obtaining the missing
information.
3.17 [Reserved.]
3.18 Maintenance
of PMI Policy; Claims.With
respect to each Mortgage Loan with a loan-to-value ratio in excess of 80% for
which a PMI Policy is both required and has been issued, the Servicer shall,
to
the extent permitted by Accepted Servicing Practices, maintain or cause the
Mortgagor to maintain in full force and effect a PMI Policy insuring that
portion of the Mortgage Loan in excess of 75% of value, and shall cause the
Mortgagor to pay the premium thereon on a timely basis, until the loan-to-value
ratio of such Mortgage Loan is reduced to 80% or PMI can otherwise no longer
be
mandated pursuant to applicable law. In the event that such PMI Policy shall
be
terminated, the Servicer shall attempt to obtain from another Qualified Insurer
a comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. The Servicer shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Servicer would have been covered thereunder.
In connection with any assumption or substitution agreement entered into or
to
be entered into pursuant to this Agreement, the Servicer shall promptly notify
the insurer under the related PMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy and
shall take all actions which may be required by such insurer as a condition
to
the continuation of coverage under such PMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Servicer shall obtain a replacement PMI Policy as provided above.
30
With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the
Servicer shall take all such actions on behalf of the Owner as are necessary
to
service, maintain and administer the related Mortgage Loan in accordance with
such Policy and to enforce the rights under such Policy. Except as expressly
set
forth herein, the Servicer shall have full authority on behalf of the Owner
to
do anything it deems appropriate or desirable in connection with the servicing,
maintenance and administration of such Policy; provided that the Servicer shall
not take any action to permit any modification or assumption of a Mortgage
Loan
covered by a LPMI or PMI Policy, or take any other action with respect to such
Mortgage Loan, which would result in non-coverage under such Policy of any
loss
which, but for actions of the Servicer, would have been covered thereunder.
The
Servicer shall cooperate with the PMI insurers and shall furnish all reasonable
evidence and information in the possession of the Servicer to which the Servicer
has access with respect to the related Mortgage Loan. The Servicer agrees to
prepare and present, on behalf of itself and the Owner, claims to the insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with
the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Pursuant to Section 3.04, any amounts
collected by the Servicer under any PMI Policy or LPMI Policy shall be deposited
in the Collection Account, subject to withdrawal pursuant to Section
3.05.
|
SECTION
4.
|
PAYMENTS
TO OWNER
|
4.01 Remittances.
On each
Remittance Date, the Servicer shall remit to the Owner the sum of (i) all
amounts credited to the Collection Account as of the close of business on the
related preceding Determination Date, net of charges against or withdrawals
from
the Collection Account pursuant to Section 3.05 herein, other than Principal
Prepayments received after the end of the related Principal Prepayment Period,
plus, to the extent not already deposited in the Collection Account, (ii) all
P&I Advances, if any, which the Servicer is obligated to remit pursuant to
Section 4.03 and (iii) all Compensating Interest payable by the Servicer minus
(iv) any amounts attributable to Monthly Payments collected by the Servicer
but
due on a Due Date or Due Dates subsequent to the last day of the related Due
Period, which amounts shall be remitted on the related Remittance Date next
succeeding the Due Period for such amounts.
With
respect to any Mortgage Loan, during the term of this Agreement, in the event
such Mortgage Loan prepays in full, the Servicer shall distribute such
prepayment to the Owner, together with any related prepayment charge, on the
Remittance Date. In connection with the distribution of such prepayment, the
Servicer shall provide to the Owner a report containing the mortgage loan
number, the name of the Mortgagor and the amount of the
distribution.
31
All
distributions made to the Owner on each Remittance Date will be made to the
Owner of record on the preceding Record Date, and shall be based on the Mortgage
Loans owned and held by the Owner. All distributions, including any distribution
for prepayments in full, shall be made by wire transfer of immediately available
funds to the account of the Owner at a bank or other entity having appropriate
facilities therefor as directed in writing by the Owner or by check mailed
to
the address of the Owner.
With
respect to any remittance received by the Owner after the Business Day following
the Business Day on which such payment was due, the Servicer shall pay to the
Owner interest on any such late payment at an annual rate equal to the Prime
Rate, adjusted as of the date of each change, plus two (2) percentage points,
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be deposited in the Collection Account by the Servicer
on
the date such late payment is made and shall cover the period commencing with
the day following such second Business Day and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Servicer of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Owner.
4.02 Reports
to Owner.
Not
later than the Remittance Advice Date, the Servicer shall furnish to the Owner
as of the previous Determination Date, by electronic or such other format
acceptable to Owner and Servicer, the information listed on Schedule
I
attached
hereto.
In
addition, the Servicer shall provide the Owner with such information concerning
the Mortgage Loans as is necessary for the Owner to prepare its federal income
tax return, and reports required by state and federal regulatory agencies
provided such information is in Servicer’s possession and is reasonably
available to the Servicer.
4.03 P&I
Advances by Servicer. On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Collection Account from its own funds an amount equal to all
P&I Payments (with interest on each Mortgage Loan adjusted to the applicable
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during
the
applicable Due Period and which were delinquent on the Business Day immediately
preceding such Remittance Date or which were deferred pursuant to this
Agreement. The Servicer’s obligation to make such P&I Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the last Remittance Date prior
to the Remittance Date for the distribution of all Liquidation Proceeds and
other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan; provided, that the Servicer shall
not be obligated to make P&I Advances which the Servicer determines to be
Nonrecoverable Advances. The determination by the Servicer that it has made
a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Owner and detailing the reasons for such
determination. The Servicer shall not be obligated to advance shortfalls of
interest resulting from the application of the Servicemembers Civil Relief
Act,
as amended, or similar state laws.
32
(b) Such
P&I Advance shall be made by the Servicer either (i) from its own funds or
(ii) from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry
in
the records of the Collection Account that amounts held for future distribution
have been, as permitted by this Section 4.03, used by the Servicer in discharge
of any such P&I Advance) or (iii) in the form of any combination of (i) and
(ii) aggregating the total amount of P&I Advances to be made by the Servicer
with respect to the Mortgage Loans and REO Properties. Any amount held for
future distribution and so used shall be appropriately reflected in the
Servicer’s records and replaced by the Servicer by deposit in the Collection
Account on or before any future Remittance Date to the extent
required.
|
SECTION
5.
|
GENERAL
SERVICING PROCEDURES
|
5.01 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled to
withdraw from the Collection Account or to retain from interest payments on
the
Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the same unpaid principal
balance and for the period respecting which any related interest payment on
a
Mortgage Loan is computed. The Servicer shall be entitled to its pro rata
portion of the Servicing Fee with respect to the transfer of Mortgage Loans
on
the Servicing Transfer Date payable by the Owner on the Servicing Transfer
Date.
Additional
Servicing compensation in the form of Ancillary Income shall be retained by
the
Servicer and is not required to be deposited in the Collection
Account.
5.02 Repayment
of Servicing Advances.
Subject
to Section 3.05, on each Remittance Date, or upon liquidation or transfer of
servicing of a Mortgage Loan, the Servicer shall be entitled to reimbursement
for all due and unpaid P&I Advances and Servicing Advances. The Servicer may
reimburse itself from the funds in the Collection Account for due and unpaid
Servicing Advances prior to distribution of such funds to the Owner. To the
extent that there are not sufficient funds in the Collection Account to
reimburse the Servicer for due and unpaid Servicing Advances, or if the
Collection Account is no longer in the Servicer’s control, the Owner shall pay
the amount of such shortfall to the Servicer within five (5) Business Days
upon
receipt of an invoice therefor. In addition to the data requirements listed
on
Schedule I, the Servicer shall provide in its monthly remittance reports
all information relating to Servicing Advances as deemed necessary by the Owner
in its reasonable discretion.
5.03 Right
to Examine Servicer Records.
The
Owner may examine and audit the Servicer’s books, records, or other information
directly related to or concerning this Agreement or the Mortgage Loans. Such
examination and audit shall occur during business hours or at such other times
as may be reasonable under applicable circumstances, upon at least three (3)
days’ advance notice to the Servicer.
33
5.04 Annual
Independent Public Accountants’ Servicing Report.
On or
before March 15, 2006, the Servicer, at its expense, shall cause a firm of
independent public accountants which is a member of the American Institute
of
Certified Public Accountants to furnish a statement to each Owner stating that
(i) it has obtained a letter of representation regarding certain matters from
the management of the Servicer which includes an assertion that the Servicer
has
complied with certain minimum residential mortgage loan servicing standards,
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to
the
servicing of residential mortgage loans during the most recently completed
fiscal year and (ii) on the basis of an examination conducted by such firm
in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to the exception and other qualifications that may be
appropriate.
5.05 Statement
of Compliance.
The
Servicer will deliver to the Owner not later than March 15, 2006, a statement
of
compliance confirming, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding year and of performance under
this Agreement has been made under the signatory’s supervision and (ii) to the
best of such signatory’s knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout such year,
or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such signatory and the nature and status
thereof. Copies of such statement may be provided by the Owner to any Person
identified by the Owner as a prospective purchaser of the Mortgage
Loans.
5.06 Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With
respect to each Mortgage Loan and the related Mortgagor, the Servicer shall
comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and all
applicable regulations promulgated thereunder, and shall provide all notices
required of the Servicer thereunder.
5.07 Compliance
with REMIC provisions.
If
a
REMIC election is or is to be made with respect to the arrangement under which
the Mortgage Loans and any REO property are held, the Servicer shall manage,
conserve, protect and operate each REO Property in a manner which does not
cause
such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by such
REMIC
of any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code or any “net income from foreclosure property” within
the meaning of Section 860G(c)(2) of the Code.
|
SECTION
6.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SERVICER AND THE
OWNER
|
6.01 Representations
of the Servicer.
The
Servicer represents, warrants and covenants to the Owner as of the Effective
Date, each relevant Cut-off Date, as of each Closing Date and as of any date
specifically provided herein:
(a) The
Servicer is duly organized, validly existing and in good standing as a
corporation under the laws of the Commonwealth of Pennsylvania and the Servicer
is duly licensed and qualified in all states which such licensing or
qualification is required to conduct its business or perform its obligations
hereunder and the services and is and will remain in compliance with the laws
of
each state in which any Mortgaged Property is located to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement;
34
(b) The
Servicer has the full power and authority to service each Mortgage Loan and
to
execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement, and the Servicer has taken all requisite
corporate action to make this Agreement and all agreements contemplated hereby
valid and binding upon the Servicer in accordance with their terms. The Servicer
has duly authorized the execution, delivery and performance of this Agreement;
it has duly executed and delivered this Agreement. This Agreement, assuming
due
authorization, execution and delivery by the Owner, constitutes a legal, valid
and binding obligation of the Servicer, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium, or similar
laws affecting creditors’ rights in general, including equitable
remedies;
(c) The
execution and delivery of this Agreement by the Servicer and the performance
of
and compliance with the terms of this Agreement will not violate the Servicer’s
articles of incorporation or by-laws or constitute a default under or result
in
a breach or acceleration of, any material contract, agreement or other
instrument to which the Servicer is a party or which may be applicable to the
Servicer or its assets;
(d) The
Servicer is not in violation of, and the execution and delivery of this
Agreement by the Servicer and its performance and compliance with the terms
of
this Agreement will not constitute a violation with respect to any order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over the Servicer or its assets,
which violation might have consequences that would materially and adversely
affect the condition (financial or otherwise) or the operation of the Servicer
or its assets or might have consequences that would materially and adversely
affect the performance of its obligations and duties hereunder;
(e) The
Servicer is an approved servicer for Xxxxxx Xxx/Xxxxxxx Mac in good standing.
No
event has occurred, including but not limited to a change in insurance coverage,
which would make the Servicer unable to comply with Xxxxxx Mae eligibility
requirements or which would require notification to Xxxxxx Xxx/Xxxxxxx
Mac;
(f) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(g) There
are
no actions, suits or proceedings against, investigations of, the Servicer before
any court, administrative or other tribunal or, to the best of its knowledge,
threatened against the Servicer (i) that might prohibit its entering into
this Agreement, (ii) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (iii) that might prohibit or
materially and adversely affect the performance by the Servicer of its
obligations under, or validity or enforceability of, this
Agreement;
35
(h) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been
obtained;
(i) The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the Servicer;
(j) The
written statements, reports and other documents prepared and furnished or to
be
prepared and furnished by the Servicer pursuant to this Agreement or in
connection with the transactions contemplated hereby taken in the aggregate
do
not contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements contained therein not misleading;
and
(k) The
Servicer has the facilities, procedures, and experienced personnel necessary
for
the sound servicing of mortgage loans of the same type as the Mortgage Loans.
The Servicer is in good standing to enforce and service mortgage loans in the
jurisdiction wherein the Mortgaged Properties are located.
6.02 Representations
of the Owner.
The
Owner represents, warrants and covenants to the Servicer as of the Effective
Date, each relevant Cut-off Date, each relevant Closing Date and as of any
date
specifically provided herein:
(a) The
execution, delivery and performance by the Owner of this Agreement has been
duly
and validly authorized by all necessary corporate action. This Agreement
constitutes a legal, valid and enforceable obligation of the Owner, subject
to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors’
rights generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except that
the
enforcement or rights with respect to indemnification and contribution
obligations and provisions (i) purporting to waive or limit rights to trial
by
jury, oral amendments to written agreements or rights of set off or (ii)
relating to submission to jurisdiction, venue or service of process, may be
limited by applicable law or considerations of public policy.
|
SECTION
7.
|
THE
SERVICER
|
7.01 [Reserved].
7.02 Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as a
corporation, and will obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to substantially all of the business
of the Servicer (whether or not related to mortgage loan servicing), shall
be
the successor of the Servicer hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided,
however,
that
the successor or surviving Person shall be an institution (a) having a GAAP
net
worth of not less than $10,000,000, and (b) that is one of the following: (i)
an
institution the deposits of which are insured by the FDIC or (ii) an institution
which is a HUD-approved mortgagee whose primary business is in origination
and
servicing of first and second mortgage loans or (iii) an institution which
is a
Xxxxxx Mae/Xxxxxxx Mac approved servicer in good standing.
36
7.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Owner for any action taken or
for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Servicer or any such Person against any breach of
warranties or representations made herein, its own negligent actions, or failure
to perform its obligations in compliance with any standard of care set forth
in
this Agreement, or any liability which would otherwise be imposed by reason
of
any breach of the terms and conditions of this Agreement. The Servicer and
any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under
any obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Servicer may undertake any such action which it
may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto. In such event, the Servicer shall be entitled
to
reimbursement from the Owner of the reasonable legal expenses and costs of
such
action.
Notwithstanding
Section 20, the Servicer shall not be required to indemnify, or otherwise be
liable to, the Owner or those referenced above for any Liability which the
Owner
is required to indemnify for pursuant to Section 20(c) above.
7.04 Servicer
Not to Assign.
The
Owner has entered into this Agreement with the Servicer and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Servicer, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Servicer shall not assign this Agreement or the servicing hereunder or delegate
its rights or duties hereunder or any portion hereof, except for the assignment
or delegation of standard practice outsourcing activities such as the delegation
of data processing, tax reporting and other purely clerical or administrative
functions in connection with its Servicing responsibilities, or sell or
otherwise dispose of all or substantially all of its property or assets except
in connection with a merger or consolidation permitted under Section 7.02
without thirty (30) days prior notice and the prior written consent of the
Owner, which consent shall be reasonably granted or withheld in the sole
discretion of the Owner.
Without
in any way limiting the generality of this Section 7.04, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or sell or otherwise dispose of
all
or substantially all of its property or assets, except as permitted herein,
without the prior written consent of the Owner, then the Owner shall have the
right to terminate this Agreement upon notice given as set forth in
Section 9.01, without any payment of any penalty or damages and without any
liability whatsoever to the Servicer or any third party.
37
|
SECTION
8.
|
DEFAULT
|
8.01 Default
by Servicer.
If one
or more of the following Events of Default shall occur and be continuing, that
is to say:
(a) any
failure by the Servicer to remit to the Owner any payment required to be made
under the terms of this Agreement which continues to be uncured for a period
of
three (3) Business Days after the date upon which (i) written notice of such
failure requiring the same to be remedied shall have been given to the Servicer
by the Owner, or (ii) Servicer first becomes aware of such failure;
(b) failure
on the part of the Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Servicer set forth
in this Agreement (including but not limited to breach by Servicer of any one
or
more of the representations, warranties and covenants of the Servicer as set
forth in Section 6.01 above) which continues uncured for a period of thirty
(30)
days (except that (x) such number of days shall be fifteen (15) days in the
case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement and (y) such number of days shall be one
(1) calendar day with respect to the reports required under Sections 5.04
and 5.05 and the last paragraph of Section 25) after the earlier of the date
on
which (i) written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Owner, or (ii) Servicer first
becomes aware of such failure;
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceeding or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
days;
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its assets;
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations;
38
(f) failure
by the Servicer to be in compliance with the “doing business” or licensing laws
of any jurisdiction where a Mortgaged Property is located and such failure
has a
material and adverse effect on the Servicer’s ability to perform its obligations
under this Agreement;
(g) the
Servicer ceases to meet the qualifications of either a Xxxxxx Xxx or Xxxxxxx
Mac
servicer which status continues uncured for a period of thirty (30) days;
or
(h) other
than as provided in Section 7.04 herein, the Servicer attempts to assign its
rights to Servicing Compensation hereunder or the Servicer attempts, without
the
consent of the Owner, to sell or otherwise dispose of all or substantially
all
of its property or assets or to assign this Agreement or the Servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof;
then,
and in
each and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Owner may have at law or equity
to damages, including injunctive relief and specific performance, the Owner,
by
notice in writing to the Servicer may immediately terminate without compensation
all the rights and obligations of the Servicer as servicer under this Agreement.
On or after the receipt by the Servicer of such written notice, all authority
and power of the Servicer to service the Mortgage Loans under this Agreement
shall on the date set forth in such notice pass to and be vested in the
successor appointed pursuant to Section 10 herein.
8.02 Default
by Owner.
If one
or more of the following Events of Default shall occur and be continuing, that
is to say:
(a) breach
by
Owner of the representations, warranties and covenants of the Owner as set
forth
in Section 6.02 above);
then,
and in
each and every such case (except in instances where the Event of Default has
been cured within thirty (30) days after the date on which written notice of
such default, requiring the same to be remedied, shall have been given to the
Owner by the Servicer), the Servicer, by notice in writing to the Owner, may
immediately terminate all of its responsibilities, duties and obligations as
servicer under this Agreement. On or after the receipt by the Owner of such
written notice, all responsibilities, duties and obligations of the Servicer
to
service the Mortgage Loans under this Agreement shall on the date set forth
in
such notice pass to and be vested in the successor appointed pursuant to
Section 10 herein.
8.03 Waiver
of Defaults.
Each
party to this Agreement may waive any default by the other party in the
performance of its obligations hereunder and its consequences. No such waiver
shall be deemed to have been given by the waiving party unless given in writing.
Upon any such waiver of a past default, such default shall cease to exist,
and
any Event of Default arising therefrom shall be deemed to have been remedied
for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
39
|
SECTION
9.
|
TERMINATION
|
9.01 Expiration
of Term and Termination with Cause.
(a) The
rights, obligations, duties and responsibilities of the Servicer shall terminate
upon the earliest to occur of: (i) the termination (in accordance with Section
9.01(c) below) of this Agreement by either party for cause pursuant to an Event
of Default; (ii) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or the disposition
of
all REO Property and the remittance of all funds due hereunder; (iii) in
the event the Servicer assigns its responsibilities under the Agreement without
the Owner’s prior consent pursuant to Section 7.04; (iv) at the election of
the Servicer, in the event the Owner, acting in bad faith, interferes with
the
Servicer’s exclusive rights to service the Mortgage Loans under this Agreement
by contacting any Mortgagors either (A) directly through collection calls;
or
(B) through third party collection agencies not previously agreed to by the
Servicer; or (v) by mutual consent of the Servicer and the Owner in
writing.
(b) This
Agreement shall continue in full force and effect, unless earlier terminated
in
accordance with this Section 9, until the distribution of the final payment
or
liquidation proceeds on the last Mortgage Loan (including, as applicable, final
disposition of, and remittance as provided in this Agreement relating to, all
REO Property acquired upon foreclosure of the last Mortgage Loan) then covered
by this Agreement.
(c) If
an
Event of Default has occurred, and provided that such Event of Default with
respect to either party has neither been waived by the other party pursuant
to
Section 8.03 nor cured (if such cure is not specifically disallowed under
the terms of this Agreement), then the aggrieved party may, by notice in writing
to the offending party, terminate all of the Servicer’s obligations, duties and
responsibilities under this Agreement.
40
9.02 Termination
without Cause.
This
Agreement shall terminate at the election of either the Owner or the Servicer
at
any time from time to time with respect to one or more Mortgage Loans, and
without cause; provided,
however,
that if
the Owner is the party electing such termination without cause, the Owner shall
pay the Servicer a termination fee equal to the product of 3.00% and the Stated
Principal Balance (as of the date notice of such termination is given) of the
Mortgage Loans subject to such termination; provided,
further,
that
either party’s ability to terminate this Agreement under this
Subsection 9.02 is expressly conditioned upon delivery by the terminating
party to the other party, by courier or other delivery service for which proof
of delivery may be obtained, (i) in the event of termination by Owner, no
less than ninety (90) days prior written notice of such election, or (ii) in
the
event of termination by the Servicer, no less than (180) days prior written
notice of such election.
9.03 Notice
of Servicing Transfers.
In the
event Owner requests the transfer of Mortgage Loans in excess of Ten Thousand
(10,000) total in any calendar month, Owner must provide a minimum sixty (60)
days prior written notice to Servicer and Servicer must provide prior written
acknowledgement by an authorized officer of Servicer.
9.04 Termination
Process.
Upon
termination for any ground stated in this Section 9, the Owner and the Servicer
shall comply with the termination process and procedures set forth in Section
10
herein.
|
SECTION
10.
|
SUCCESSOR
TO THE SERVICER
|
10.01 Effect
of Termination.
Upon a
transfer of Mortgage Loans or of servicing pursuant to Section 2.08(b) or upon
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Section 9 herein, the Owner or the Owner’s designee shall, on the
related Servicing Transfer Date, succeed to and assume all of the Servicer’s
responsibilities, rights, duties and obligations under this Agreement. In the
event that this Agreement should be terminated by the Owner for cause or by
Owner without cause (but not
in the
event this Agreement should be terminated by the Servicer for cause, unless
Servicer specifically agrees otherwise in writing), and if the Owner elects
to
appoint a Successor Servicer that agrees to succeed to all rights and assume
all
of the responsibilities, duties and liabilities of the Servicer as servicer
under this Agreement (which appointment must occur and be accepted by the
Successor Servicer within thirty (30) days of the date of written notice of
termination by either party to the other party), the termination shall not
become effective until such Successor Servicer has been appointed and has
accepted such appointment pursuant to this Section. Any Successor Servicer
appointed as provided herein shall execute, acknowledge and deliver to the
Servicer and to the Owner an instrument accepting such appointment, whereupon
such Successor Servicer shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the replaced Servicer
with similar effect as if originally named as a party to this Agreement;
provided,
however,
that
neither the Owner nor such Successor Servicer shall assume, and the replaced
Servicer shall indemnify the Owner and such Successor Servicer for, any and
all
liabilities arising out of the replaced Servicer’s acts as servicer. The
Servicing Transfer Date shall be the same as the date of termination
of
the
Servicer’s responsibilities and duties under this Agreement pursuant to
Section 8 or 9 herein, or as soon as practicable after the date of
termination to ensure compliance with any legally imposed requirements relating
to servicing transfers in general. In connection with any transfer pursuant
to
Section 2.08(b) or any termination pursuant to Section 9, all unreimbursed
Servicing Fees, P&I Advances, and Servicing Advances still owing the
Servicer shall be deducted by the Servicer from the final remittance of funds
to
the Owner. To the extent that there are insufficient funds in the Collection
Account to reimburse the Servicer for due and unpaid Servicing Fees, P&I
Advances, and Servicing Advances, or if the Collection Account is no longer
in
the Servicer’s control, the Owner shall pay the amount of such shortfall to the
Servicer within five (5) Business Days upon receipt of an invoice
thereof.
41
10.02 Transfer
of Servicing.
Upon a
transfer of Mortgage Loans or of servicing pursuant to Section 2.08(b) or upon
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Section 9 herein, the following shall be
performed:
(a) With
respect to each Mortgage Loan, on the related Servicing Transfer Date, the
Owner, or its appointed successor servicer (collectively referred to as
“Successor
Servicer”),
shall
assume all Servicing responsibilities related to, and the Servicer shall cease
all Servicing responsibilities related to the Mortgage Loans. On or prior to
the
related Servicing Transfer Date the Servicer shall take such steps as may be
necessary or appropriate to effectuate and evidence the transfer of the
Servicing of the Mortgage Loans to the Successor Servicer, including but not
limited to the following:
(i) Notice
to Mortgagors.
The
Servicer shall mail to the Mortgagor of each Mortgage a letter advising the
Mortgagor of the transfer of the Servicing of the related Mortgage Loan to
the
Successor Servicer in accordance with the Xxxxxxxx Xxxxxxxx National Affordable
Housing Act of 1990, as amended; provided,
however,
the
content and format of the letter shall have the prior approval of the Successor
Servicer. The Servicer shall provide the Owner with copies of all such notices
no later than the related Servicing Transfer Date.
(ii) Notice
to Taxing Authorities and Insurance Companies.
The
Servicer shall transmit to the applicable insurance companies (including primary
mortgage insurance policy insurers, if applicable) and/or agents, notification
of the transfer of the Servicing to the Successor Servicer, and instructions
to
deliver all notices and insurance statements, as the case may be, to the
Successor Servicer from and after the related Servicing Transfer Date. The
Servicer shall provide the Successor Servicer with copies of all such notices
no
later than the related Servicing Transfer Date.
(iii) Delivery
of Servicing Records.
The
Servicer shall forward to the Successor Servicer, all Servicing records in
the
Servicer’s possession relating to each Mortgage Loan. Such delivery of hard
copies of borrower history is an out-of-pocket expense and will be paid by
the
Owner.
(iv) Escrow
Payments.
The
Servicer shall provide the Successor Servicer, with immediately available funds
by wire transfer in the amount of the Escrow Account balance and suspense
balances and all loss draft balances associated with the related Mortgage Loan.
The Servicer shall provide the Successor Servicer, with an accounting statement
in electronic format mutually acceptable to the Owner and the Servicer, of
Escrow Payments and suspense balances and loss draft balances sufficient to
enable the Owner to reconcile the amount of such payment with the accounts
of
the Mortgage Loans. Additionally, the Servicer shall wire transfer to the Owner
the amount of any agency, trustee or prepaid Mortgage Loan payments and all
other similar amounts held by the Servicer.
42
(v) Payoffs
and Assumptions.
The
Servicer shall provide to the Successor Servicer electronic data information
regarding of all assumption statements and payoff statements generated by the
Servicer on the Mortgage Loans from the related Cut-off Date to the related
Servicing Transfer Date.
(vi) Mortgage
Payments Received Prior to Related Servicing Transfer Date.
Prior
to the related Servicing Transfer Date, all payments theretofore received by
the
Servicer on each Mortgage Loan shall be properly applied by the Servicer to
the
account of the particular Mortgagor.
(vii) Mortgage
Payments Received After Related Servicing Transfer Date.
The
amount of any related Monthly Payments received by the Servicer after the
Servicing Transfer Date shall be forwarded to the Owner by overnight mail on
the
date of receipt. The Servicer shall notify the Owner of the particulars of
the
payment, which notification requirement shall be satisfied if the Servicer
forwards with its payment sufficient information to permit appropriate
processing of the payment by the Owner. The Servicer shall assume full
responsibility for the necessary and appropriate legal application of such
Monthly Payments received by the Servicer after the Servicing Transfer Date
with
respect to related Mortgage Loans then in foreclosure or bankruptcy;
provided,
that
for purposes of this Agreement, necessary and appropriate legal application
of
such Monthly Payments shall include, but not be limited to, endorsement of
a
Monthly Payment to the Owner with the particulars of the payment such as the
account number, dollar amount, date received and any special Mortgagor
application instructions and the Servicer shall comply with the foregoing
requirements with respect to all Monthly Payments received by the Servicer
after
the Servicing Transfer Date; provided,
that
the Servicer shall not be liable for any use of such Monthly Payments by the
Owner if (i) the Servicer has met the sufficient payment information requirement
above and (ii) Monthly Payment has been forwarded to the Owner as set forth
above.
(viii) Misapplied
Payments.
Misapplied payments shall be processed as follows:
(A) All
parties shall cooperate in correcting misapplication errors;
(B) The
party
receiving notice of a misapplied payment occurring prior to the related
Servicing Transfer Date and discovered after the related Servicing Transfer
Date
shall immediately notify the other party in writing; and
(C) If
a
proven misapplied payment which occurred prior to the related Servicing Transfer
Date cannot be identified and said misapplied payment has resulted in a shortage
in a Collection Account or Escrow Account, the Servicer shall be liable for
the
amount of such shortage. The Servicer shall reimburse the Successor Servicer
for
the amount of such shortage within thirty (30) days upon receipt of written
demand therefor from the Successor Servicer.
43
(ix) Books
and Records.
On the
Servicing Transfer Date, the books, records and accounts of the Servicer with
respect to the related Mortgage Loans shall be maintained by the Servicer in
accordance with all applicable Accepted Servicing Practices.
(x) Reconciliation.
The
Servicer shall, on or before the related Servicing Transfer Date, reconcile
principal balances and make any monetary adjustments necessary to complete
the
reconciliation. Any such monetary adjustments will be transferred between the
Servicer and the Successor Servicer as appropriate.
(xi) IRS
Forms.
The
Servicer shall prepare and file all IRS forms 1098, 1099 and other applicable
forms and reports which are required to be filed hereunder with respect to
the
period prior to the related Servicing Transfer Date. The Servicer shall provide
copies of such forms (as reasonably available to the Servicer) to the Owner
upon
request and shall reimburse the Owner for any costs or penalties incurred by
the
Owner due to the Servicer’s failure to comply with this paragraph. The Servicer
shall not be responsible for the preparation or filing of any such reports
with
respect to any period commencing on or after the related Servicing Transfer
Date.
(b) The
Servicer shall not be obligated to deliver the Servicing Files to the Owner
or
Successor Servicer until and unless all such Servicing Advances shall have
been
reimbursed and all such Servicing Fees shall have been paid. In addition, if
and
to the extent that from and after the Servicing Transfer Date (or such earlier
date through which Servicing Advances shall have been, for convenience,
calculated and reimbursed) the Servicer should receive and pay bills (including,
but not limited to, non-sufficient fund checks) for services properly rendered
with respect to the Mortgage Loans and REO Property, then Servicer shall be
entitled to reimbursement for such additional payments within five (5) Business
Days of the Servicer’s written request, directly from (i) the Collection
Account, or (ii) if such Collection Account has insufficient funds to pay such
additional payments or is no longer under the Servicer's control, the Successor
Servicer, or (iii) if the Successor Servicer fails to pay such advances, the
Owner.
|
SECTION
11.
|
NOTICES
|
All
notices, requests, demands, consents, approvals, agreements, amendments or
other
communications, to or by a party to this Agreement shall:
(a) be
in
writing addressed to the address of the recipient set out in this Section 11
of
this Agreement or to such other address as such recipient may have notified
the
sender;
(b) be
signed
by an authorized officer of the sender, if necessary, or an employee of the
sender; and
44
(c) be
delivered in Person or sent by registered or certified mail, return receipt
requested, by facsimile transmission, or by overnight courier and be deemed
to
be duly given or made:
(i) in
the
case of delivery in person, when delivered to the recipient at such
address;
(ii) in
the
case of registered or certified mail, three days after the date of
mailing;
(iii) in
the
case of overnight courier, the date of receipt; or
(iv) in
the
case of facsimile transmission, when received in legible form by the recipient
at such address, and in the event that the recipient has been requested to
acknowledge receipt of the entire facsimile transmission, upon the sending
or
receiving the acknowledgment of receipt (which acknowledgment the recipient
will
promptly give); but if such delivery or dispatch is later than 5:00 p.m.
local time on a Business Day or occurs on a day which is not a Business Day,
it
will be deemed to have been duly given or made at the commencement of business
on the next Business Day.
Notices
may be sent:
|
(i)
|
if
to the Servicer:
|
GMAC
Mortgage Corporation
000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
Attention:
Executive Vice President of National Loan Administration
Telecopier
No: (000) 000-0000
45
if
to the
Owner:
1221
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxxx Whole Loan Operations Manager
Fax
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with
copies to:
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx Servicing Oversight
0000
X
Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax :
000-000-0000
Email :
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
00
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxx - XXXX
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
000-000-0000
Email :
xxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
or
to
such other address as the Owner and the Servicer shall have specified in writing
to each other.
If
a
change of address shall occur, the involved party or parties herein shall notify
the other parties in writing of such address change within two (2) Business
Days. If the involved party or parties failed to provide such notification
within two (2) Business Days, all notices (including, but not limited to, notice
of claims, legal processes, etc.) mailed by the Servicer to the address(es)
in
this Section 11 are deemed to have been properly delivered to the intended
recipient.
|
SECTION
12.
|
SEVERABILITY
CLAUSE
|
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
|
SECTION
13.
|
COUNTERPARTS
|
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
|
SECTION
14.
|
APPLICABLE
LAW
|
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO
CONFLICTS OF LAWS PRINCIPLES), EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL
LAW.
47
|
SECTION
15.
|
SUCCESSORS
AND ASSIGNS
|
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Servicer and the Owner and the respective successors and permitted assigns
of
the Servicer and the Owner. Subject to Section 7.04 herein, this Agreement
shall
not be assigned, pledged or hypothecated by the Servicer to a third party
without the consent of the Owner.
|
SECTION
16.
|
WAIVERS
|
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
|
SECTION
17.
|
EXHIBITS
|
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
|
SECTION
18.
|
GENERAL
INTERPRETIVE PRINCIPLES
|
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(c) references
herein to “Sections,” “Subsections,” “Paragraphs,” and other subdivisions
without reference to a document are to designated Articles, Sections,
Subsections, Paragraphs and other subdivisions of this Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference to such
Subsection as contained in the same Section in which the reference appears,
and
this rule shall also apply to Paragraphs and other subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(f) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
48
(g) this
Agreement shall be fairly and evenly construed and interpreted as the joint
negotiated work product between two knowledgeable participants in the secondary
mortgage market, each represented by legal counsel. No inference or presumption
in favor of one party or against the other shall arise on account of drafting.
The Section headings are for convenience only and shall not affect the
construction of this Agreement.
|
SECTION
19.
|
REPRODUCTION
OF DOCUMENTS
|
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications which may hereafter be executed,
(b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process.
|
SECTION
20.
|
INDEMNIFICATION
|
(a) The
Servicer shall indemnify and hold the Owner, any Successor Servicer, and their
respective officers, directors, employees and Affiliates (each, an “Indemnified
Party”)
harmless from, and shall reimburse each Indemnified Party for, any losses,
damages, deficiencies, claims, causes of action or expenses of any nature
(including, but not limited to reasonable attorneys’ fees) (each a “Liability”)
incurred by such Indemnified Party which arise out of or result from Servicer’s
willful misfeasance, bad faith or negligence in the performance of its duties
or
its reckless disregard of its obligations and duties hereunder, the Servicer’s
failure to service the Mortgage Loans in strict compliance with the terms of
this Agreement or the breach by the Servicer of any of its representations
and
warranties herein.
(b) Servicer
Indemnification. The Owner shall indemnify and hold harmless from and shall
reimburse the Servicer for any losses, damages, deficiencies, claims, causes
of
action or expenses of any nature (including, but not limited to reasonable
attorneys’ fees) incurred by the Servicer which arise out of or result from the
Owner’s gross negligence or willful failure to perform any of its obligations
under this Agreement.
(c) The
Owner
shall defend and indemnify the Servicer, its employees, officers, affiliates,
agents and representatives (the “Servicer
Indemnified Parties”),
against any and all Liability that the Servicer Indemnified Parties may sustain
which are caused by or result from (directly or indirectly, in whole or in
part):
(i) (A)
the
Servicer taking any action, or refraining from taking any action, with respect
to any Mortgage Loan or REO Property at or in conformity with the express
written direction of the Owner or this Agreement or (B) the Servicer taking
and
initiating any legal actions with respect to any Mortgage Loans and REO
Properties or taking title to any REO Properties on behalf of the Owner, in
the
name of the Servicer or an Affiliate thereof (in each case, unless such action
or omission is taken with a standard of care in contravention of any standard
of
care required under the Agreement and such contravention is the proximate cause
of the claim or action);
49
(ii) the
refusal of the Owner or any trustee or custodian in possession of the Servicing
File to provide to the Servicer the originals of the Servicing File within
a
reasonable amount of time after a request for such documents has been received
in order to allow the Servicer sufficient time to process satisfactions,
payoffs, and releases;
(iii) any
act
or omission to act of any servicer, sub-servicer, owner or originator of a
Mortgage Loan or Mortgaged Property (or any other Person) prior to or in
conjunction with servicing transfer on the Servicing Transfer Date, including,
without limitation, any data integrity issue (and any related costs of
correcting such issues); provided, however, that the Owner shall have no
liability hereunder for any act or omission relating to a servicing transfer
as
to which the Owner has not received written notice of a claim for
indemnification within 60 days after the Servicing Transfer Date; and provided,
further, should the Servicer have actual knowledge of any data integrity error
which is likely to materially affect any Mortgage Loan, the Servicer, in
consultation with the Owner and at the Owner’s expense, will take reasonable
efforts to correct such error;
(iv) the
violation of a Mortgage Loan under the Home Ownership and Equity Protection
Act
of 1994 or under any other applicable state, federal or local law;
(v) any
Environmental Liability.
The
term
“Environmental Liability” shall mean any and all claims, losses, damages,
liabilities, judgments, penalties, fines, forfeitures, reasonable legal fees
and
expenses, and any and all related costs and/or expenses of litigation,
administrative and/or regulatory agency proceedings, and any other costs, fees
and expenses, suffered or incurred by the Servicer or Owner arising out of
or
resulting from the introduction of environmentally hazardous materials on any
Mortgaged Property before and/or after the date of the Servicer’s knowledge
thereof, including, without limitation, (a) any liability under or on account
of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., as the same may be amended from time to time,
and/or any other federal or state environmental laws, and specifically
including, without limitation, any liability relating to asbestos and asbestos
containing materials, polychlorinated biphenyls, radon gas, petroleum and
petroleum products, urea formaldehyde and any substances classified as being
“in
inventory”, “usable work in process” or similar classification which would, if
classified as unusable, be included in the foregoing definition, including
the
assertion of any lien thereunder, (b) claims brought by third parties for loss
or damage incurred or sustained subsequent to the date hereof, and (c) liability
with respect to any other matter affecting the Mortgaged Property within the
jurisdiction of the federal Environmental Protection Agency or state
environmental regulatory agencies pursuant to any state laws, and in the
regulations adopted pursuant to any of said laws; provided, however, that the
indemnity for Environmental Liability shall not be effective with respect to
any
liability caused by the Servicer that would otherwise be imposed by reason
of
the Servicer’s willful misfeasance or bad faith in the performance of or failure
to perform its duties hereunder.
50
(d) Procedure.
If the
Owner or the Servicer (either, the “Indemnified Party) receives notice of the
commencement of any action for which a claim for indemnity under this Section
20
may be made, the Indemnified Party shall promptly notify the Servicer or the
Owner, as the case may be (the party so notified, the “Indemnitor”) thereof;
provided,
that
any delay in notification shall not reduce the extent of indemnity and defense
hereunder except to the extent that the delay prejudices the Indemnitor.
Following receipt of notice of the commencement of any action, the Indemnitor
shall be entitled to participate in such action, and upon notice delivered
to
the Indemnified Party, to assume the defense thereof, with counsel reasonably
acceptable to the Indemnified Party, who shall not unreasonably withhold such
acceptance. If, however, the defendants in such action include both the Owner
and the Servicer, and the Indemnified Party shall have reasonably concluded
that
there may be legal defenses available to it that are different from or
additional to those available to the Indemnitor, the Indemnified Party shall
be
entitled, at the expense of the Indemnitor, to separate counsel to assert such
defenses. If the Indemnitor shall have given notice of its assumption of the
defense of such action and following the approval by the Indemnified Party
of
counsel, the Indemnitor shall not be liable under this Section 20 for any legal
expenses incurred by the Indemnified Party in retaining separate counsel in
connection with such defense unless (i) the Indemnified Party shall have
employed separate counsel in accordance with the preceding sentence;
(ii) the Indemnitor shall not have employed counsel reasonably acceptable
to the Indemnified Party within a reasonable time after notice of the
commencement of action; or (iii) the Indemnitor shall have otherwise authorized
the employment of separate counsel for the Indemnified Party at the Indemnitor’s
expense; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the separate counsel referred to in such
clause (i) or (iii).
(e) Limit
of Servicer’s Liability.
The
Servicer shall have no obligation to indemnify or in any way compensate or
reimburse the Owner for losses due to the Owner’s gross negligence, bad faith or
willful misconduct under this Agreement, and, if the same is determined by
an
arbitrator or a court of competent jurisdiction from which no appeal is
available, the Servicer shall be entitled to a direct reimbursement for
indemnification payments previously made to the Owner under this Section 20
by
the Servicer if such determination is made.
(f) Limit
of Owner’s Liability.
The
Owner shall have no obligation to indemnify the Servicer for losses due to
the
Servicer’s willful misconduct or negligence, and, if the same is determined by
an arbitrator or a court of competent jurisdiction from which no appeal is
available, the Owner shall be entitled to reimbursement for expenses incurred
by
the Owner or previously reimbursed to the Servicer by the Owner. Other than
as
expressly set forth herein and subject to Section 7 herein, the Owner shall
have
no obligation to indemnify the Servicer for any losses.
|
SECTION
21.
|
LEGAL
MATTERS
|
21.01 Waiver
of Trial by Jury.
EACH OF
THE SERVICER AND THE OWNER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR
THE
TRANSACTIONS CONTEMPLATED HEREBY.
51
21.02 Submission
to Jurisdiction; Waivers.
The
Servicer hereby irrevocably and unconditionally:
(a) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(c) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE OWNER SHALL HAVE BEEN NOTIFIED; AND
(d) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
|
SECTION
22.
|
CONFIDENTIALITY
OF INFORMATION
|
(a) Owner
and
Servicer shall not disclose any confidential or proprietary information of
the
other party with respect to such other party, the Mortgage Loans, or the
Mortgage Files that may be in the possession of that party (the “Confidential
Information”)
to any
Person who is not a partner, officer, employee, counsel, or agent of such party
except with the written consent of such other party or pursuant to a subpoena
or
order issued by a court or by an administrative, legislative, or law enforcement
agent, department, agency, body or committee.
(b) The
Owner
and the Servicer shall not be required to treat as Confidential Information,
any
information of the other party if (i) such information is already in the
possession of the party and is not otherwise subject to any agreement as to
confidentiality, (ii) such information is or becomes generally available in
the public domain other than as a result of a disclosure by the party or its
partners, officers employees, counsel, or agents, (iii) such information is
not acquired from the other party or Persons known to be in breach of an
obligation of secrecy to such other party, (iv) such information is
contained in or derived from the Mortgage File, or (v) such information is
statistical in nature, and the Servicer or the Servicer’s counsel determines it
is reasonably required to be disclosed in connection with the securitization
or
other transfer of mortgage loans (other than the Mortgage Loans) sold by
Servicer.
52
(c) Neither
of the parties to this Agreement nor any of their Affiliates shall issue any
press release or public announcement concerning the contemplated transaction,
the existence of this Agreement, the terms, conditions, and provisions of this
Agreement, or any of the party’s Confidential Information, (i) unless
mutually agreed by the parties or (ii) except as required by law, in which
event the disclosing party shall consult with the other party to the extent
practicable before making such disclosure.
|
SECTION
23.
|
NO
PERSONAL SOLICITATION
|
From
and
after each Closing Date, the Servicer agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents and Affiliates,
or
by any independent contractors or independent mortgage brokerage companies
on
the Servicer’s behalf, to personally, by telephone or mail, solicit the
Mortgagor or Mortgagor under any Mortgage Loan to refinance a Mortgage Loan.
The
Servicer further agrees to use reasonable efforts to provide Owner written
or
electronic notice when the Servicer has received a request for verification
of
mortgage, a request for demand for payoff, a Mortgagor initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan;
provided,
it is
understood and agreed that promotions undertaken by the Servicer or its
affiliates which (i) concern optional insurance products or other
additional products or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor.
|
SECTION
24.
|
MERS
PROVISION
|
With
respect to each MERS Mortgage Loan, no later than five (5) Business Days after
notification of the Servicer by the Owner of the transfer of such MERS Mortgage
Loan, the Servicer shall designate, as directed by the Owner, the Successor
Servicer, as the Servicer on MERS. In addition, no later than five (5) Business
Days after notification of the Servicer by the Owner of the transfer of such
MERS Mortgage Loan, the Servicer shall designate, as directed by the Owner,
the
successor Owner of the MERS Mortgage Loan, as the Investor on MERS. In addition,
the Servicer shall promptly take all other actions reasonably requested by
Owner
with respect to MERS Mortgage Loans and MERS to effectuate and evidence the
transfer of servicing and/or ownership thereof in accordance with the terms
of
this Agreement.
53
|
SECTION
25.
|
COOPERATION
OF SERVICER WITH A
RECONSTITUTION
|
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, after the related Servicing Transfer Date, on one or more dates (each,
a
“Reconstitution
Date”)
at the
Owner’s sole option, the Owner may effect a sale (each, a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
(a) Whole
Loan Transfers to Xxxxxx Mae under its Cash Purchase Program or MBS Program
(Special Servicing Option); or
(b) Whole
Loan Transfers to Xxxxxxx Mac; or
(c) one
or
more third party purchasers in one or more Whole Loan Transfers; or
(d) one
or
more Securitization Transactions.
The
Servicer agrees to execute in connection with any Whole Loan Transfer to Xxxxxx
Mae or Xxxxxxx Mac, any and all pool purchase contracts, and/or agreements
reasonably acceptable to the Servicer among the Owner, the Servicer, Xxxxxx
Mae
or Xxxxxxx Mac (as the case may be) and any servicer in connection with a Whole
Loan Transfer, a Seller’s warranties and servicing agreement or a participation
and servicing agreement in form and substance reasonably acceptable to the
Servicer, and in connection with a Securitization Transaction, a pooling and
servicing agreement or sale and servicing agreement in form and substance
reasonably acceptable to the Servicer (collectively the agreements referred
to
herein are designated, the “Reconstitution
Agreements”).
In
the
event the Servicer is chosen by the Owner, and the Servicer agrees, to service
any Mortgage Loans in connection with a Reconstitution, with respect to each
Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate
fully with the Owner and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Owner and as negotiated
by
the parties; (3) to restate as nearly as possible the representations and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution Date or make the representations and
warranties regarding the Servicer set forth in the related selling/servicing
guide of the master servicer or issuer, as the case may be, in connection with
such Reconstitution, provided that the Servicer may negotiate the terms of
any
additional representations and warranties not included in this Agreement. In
connection with such Reconstitution, the Servicer shall: (i) provide to
such master servicer or issuer, as the case may be, and any other participants
in such Reconstitution, any and all information and appropriate verification
of
information which may be reasonably available to the Servicer or its affiliates,
whether through letters of its auditors and counsel or otherwise, as the Owner
or any such other participant shall reasonably request, (ii) provide to such
master servicer or issuer, as the case mat be, and any other participants in
such Reconstitution, at the expense of the Owner (not to exceed $15,000), such
opinions of counsel, letters from auditors, and certificates of public officials
or officers of the Servicer as are reasonably believed necessary by the Owner
or
any such other participant; and (iii) execute, deliver and satisfy all
conditions set forth in any indemnity agreement as required by the Owner or
any
such participant in the form of Exhibit
G
attached
hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests
made by the Owner to effect such Reconstitution Agreements.
54
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if this Agreement shall remain in effect with
respect to the Mortgage Loans, shall continue to be serviced in accordance
with
the terms of this Agreement and with respect thereto this Agreement shall remain
in full force and effect.
With
respect to any Mortgage Loans sold in a Securitization Transaction where the
Servicer is a servicer, the Servicer agrees that on or before March 15th of
each
year beginning March 15, 2006, the Servicer shall deliver to the depositor,
the
master servicer (if any), and the trustee for the securitization trust created
in the Securitization Transaction, and their officers, directors and affiliates,
(b)
a
certification in the form attached as Exhibit I
hereto,
executed by the senior officer in charge of servicing at the Servicer for use
in
connection with any Form 10-K to be filed with the Securities and Exchange
Commission with respect to the securitization trust and the annual statement
of
compliance and accountant’s report referred to in such certification. In such
event the Servicer shall agree to the following indemnification provision:
"The
Servicer shall indemnify and hold harmless the depositor, the master servicer
(if any), and the trustee, and their respective officers, directors and
Affiliates, from and against any losses, damages, charges, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon any breach of the Servicer’s
obligations under this paragraph or any material misstatement or omission,
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for in the preceding sentence is
unavailable or insufficient to hold harmless any indemnified party, then the
Servicer agrees that it shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
of
such indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party, on the one hand, and the Servicer,
on
the other, in connection with a breach of the Servicer’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith or
willful misconduct of the Servicer in connection therewith."
|
SECTION
26.
|
MATERIAL
CHANGE
|
The
Servicer shall promptly notify the Owner in writing of any event, circumstance
or occurrence which may materially and adversely affect the ability of the
Servicer to perform in accordance with this Agreement.
|
SECTION
27.
|
FURTHER
AGREEMENTS
|
The
Servicer and the Owner each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
55
|
SECTION
28.
|
ENTIRE
AGREEMENT
|
This
Agreement sets forth the entire Agreement among the parties, and there are
no
prior agreements, understandings, restrictions, warranties, or representations
among the parties with respect thereto unless specified herein.
|
SECTION
29.
|
RELATIONSHIP
BETWEEN THE PARTIES
|
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture among the parties. The duties and responsibilities of the Servicer
shall
be performed by the Servicer as an independent contractor and not as an agent
of
the Owner. The Servicer shall have full control of all of its acts, doings
and
proceedings relating to or requisite in connection with the discharge of its
duties and responsibilities under this Agreement.
|
SECTION
30.
|
LIMITATION
OF DAMAGES.
|
NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY OR ANY OTHER LEGAL
OR
EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
|
SECTION
31.
|
COMPLIANCE
WITH REGULATION AB.
|
31.01 Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that the purpose of Section 31 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 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 to deliver to
the
Owner (including any of its assignees or designees) and any Depositor, any
and
all statements, reports, certifications, records and any other information
necessary in the good faith determination of the Owner or any Depositor to
permit the Owner or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Servicer, any Subservicer
and
the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed
by the Owner or any Depositor to be necessary in order to effect such
compliance.
56
31.02 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
31.03
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 residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been disclosed
or reported by the Servicer; (iv) no material changes to the Servicer’s policies
or procedures with respect to the servicing function it will perform under
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 or any Subservicer with respect to
any
Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
(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
31.03,
the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
31.03 Information
to Be Provided by the Servicer.
In
connection with any Securitization Transaction the Servicer shall (i) within
five Business Days following request by the Owner or any Depositor, provide
to
the Owner and such Depositor (or cause each Subservicer to provide), in writing
and in form and substance reasonably satisfactory to the Owner and such
Depositor, the information and materials specified in paragraphs (a), (c) and
(f) of this Section, and (ii) as promptly as practicable following notice to
or
discovery by the Servicer, provide to the Owner and any Depositor (in writing
and in form and substance reasonably satisfactory to the Owner and such
Depositor) the information specified in paragraph (d) of this
Section.
57
(a) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(A) [Reserved];
(B) [Reserved];
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Servicer and each Subservicer; and
(D) a
description of any affiliation or relationship between the Servicer, each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Servicer by the Owner or any Depositor in
writing in advance of such Securitization Transaction:
1. the
sponsor;
2. the
depositor;
3. the
issuing entity;
4. any
servicer;
5. any
trustee;
6. any
originator;
7. any
significant obligor;
8. any
enhancement or support provider; and
9. any
other
material transaction party.
(b) [Reserved].
(c) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a “Transaction
Servicer”),
as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the
Transaction Servicer’s form of organization;
(B) a
description of how long the Transaction Servicer has been servicing residential
mortgage loans; a general discussion of the Transaction Servicer’s experience in
servicing assets of any type as well as a more detailed discussion of the
Transaction Servicer’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 Transaction
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans and information on factors related to the Transaction Servicer
that may be material, in the good faith judgment of the Owner or any Depositor,
to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
58
1. whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Transaction Servicer have defaulted or experienced an early
amortization or other performance triggering event because of servicing during
the three-year period immediately preceding the related Securitization
Transaction;
2. the
extent of outsourcing the Transaction Servicer utilizes;
3. whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Transaction Servicer as a servicer during the three-year
period immediately preceding the related Securitization
Transaction;
4. whether
the Transaction Servicer has been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; and
5. such
other information as the Owner or any Depositor may reasonably request for
the
purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Transaction Servicer’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;
(D) information
regarding the Transaction Servicer’s financial condition, to the extent that
there is a material risk that an adverse financial event or circumstance
involving the Transaction Servicer could have a material adverse effect on
the
performance by the Transaction Servicer of its servicing obligations under
this
Agreement or any Reconstitution Agreement;
(E) information
regarding advances made by the Transaction Servicer on the Mortgage Loans and
the Transaction Servicer’s overall servicing portfolio of residential mortgage
loans for the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized officer of
the
Transaction Servicer to the effect that the Transaction Servicer has made all
advances required to be made on residential mortgage loans serviced by it during
such period, or, if such statement would not be accurate, information regarding
the percentage and type of advances not made as required, and the reasons for
such failure to advance;
59
(F) a
description of the Transaction Servicer’s processes and procedures designed to
address any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
(G) a
description of the Transaction Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Transaction Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
(d) 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 specified in clause (D) of paragraph (a) of this Section (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.
(e) 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.
(f) In
addition to such information as the Servicer, as 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
by
the Owner or any Depositor to facilitate preparation of distribution reports
in
accordance with Item 1121 of Regulation AB and to permit the Owner or such
Depositor to comply with the provisions of Regulation AB relating to Static
Pool
Information regarding the performance of the Mortgage Loans on the basis of
the
Owner's or such Depositor's reasonable, good faith interpretation of the
requirements of Item 1105(a)(1)-(3) of Regulation AB (including without
limitation as to the format and content of such Static Pool Information). 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 in connection with the applicable Securitization
Transaction.
60
(g) The
Servicer shall provide to each originator of a Mortgage Loan (or if such
Mortgage Loan was not sold to Owner by the originator, the seller of such
Mortgage Loan) (the “Static
Pool Party”)
information with respect to each Mortgage Loan from and after the date Servicer
commences servicing such Mortgage Loan necessary for such Static Pool Party
to
comply with its obligations under Regulation AB, including, without limitation,
providing to the Static Pool Party static pool information, as set forth in
Item
1105(a)(2) and (3) of Regulation AB.
(h) Promptly
following notice or discovery of a material error in the information provided
pursuant to the immediately preceding paragraph (including an omission to
include therein information required to be provided pursuant to such paragraph),
the Servicer shall provide corrected static pool information to the Owner and
each Static Pool Party in the same format in which static pool information
was
previously provided to such party by the Servicer.
31.04 Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Owner 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.
31.05 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 and any Depositor a report (in form and substance reasonably
satisfactory to the Owner 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 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
J
hereto
delivered to the Owner concurrently with the execution of this
Agreement;
61
(ii) deliver
to the Owner and any Depositor a report of a registered public accounting firm
reasonably acceptable to the Owner 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 Company pursuant
to
Section
31.06(b)
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 (a)
and (b) 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
I.
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. Neither
the Owner nor any Depositor will request delivery of a certification under
clause (a)(iv) above, unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
31.05(a)(i)
shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit
J
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
31.05(a)(iii)
need not
address any elements of the Servicing Criteria other than those specified by
the
Servicer pursuant to Section
31.06.
31.06 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
with respect to the Mortgage Loans without giving the Owner or its designee
fifteen (15) calendar days’ advance written notice of the effective date of such
hiring or utilization of a Subservicer, followed by written confirmation of
such
hiring or utilization of a Subservicer on the effective date of such engagement
and indicating the circumstances surrounding such hiring or utilization. Any
notices required by this Section
31.06(a)
shall be
sent via telecopier or certified or registered mail to the addresses set forth
below: Xxxx X. Xxxxxxxx, Servicer Oversight Group, 0000 X-Xxx Xxxxxx, Xxxxx
000,
Xxxx Xxxxx, Xxxxxxx 00000, Telecopy: 000-000-0000 and emailed to:
xxxxx_xxxxxxxx_xxxxxx@xxxxxxxxxxxxx.xxx, with a copy to Xxxxxxx Xxxxxx,
Cadwalader, Xxxxxxxxxx & Xxxx, LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Telecopy: 000-000-0000, Email: xxxxxxx.xxxxxx@xxx.xxx (or
such
other address as such Person may otherwise specify to Servicer). 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
31.02, 31.03(c) and (e),
31.04,
31.05
and
31.07
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
31.03(d)
of this
Agreement. The Servicer shall be responsible for obtaining from each Subservicer
and delivering to the Owner and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Section
31.04,
any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section
31.05
and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Section
31.05
as and
when required to be delivered.
62
(b) 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 (i) the identity of each such Subcontractor, (ii) which (if any)
of
such Subcontractors are “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections
31.05
and
31.07
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 and any Depositor any assessment of compliance and
attestation required to be delivered by such Subcontractor under Section
31.05,
in each
case as and when required to be delivered.
31.07 Indemnification;
Remedies.
(a) The
Servicer shall indemnify the Owner, each affiliate of the Owner, and each of
the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; 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; 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); each Static Pool Party 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:
63
(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 in written or electronic form under this Section 31 by or on behalf
of
the Servicer, or provided under this Section 31 by or on behalf of any
Subservicer or Subcontractor (collectively, the “Servicer
Information”),
or
(2)
the
omission or alleged omission to state in the Servicer Information a material
fact required to be stated in the Servicer Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, by way of clarification, that clause
(B) of
this paragraph shall be construed solely by reference to the Servicer
Information and not to any other information communicated in connection with
a
sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
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 Section 31, including any failure by the Servicer
to
identify pursuant to Section
31.06(b)
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
31.02(a)
or in a
writing furnished pursuant to Section
31.02(b)
and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Section
31.02(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, Static Pool Party static pool information,
accountants’ letter or other material when and as required under this Section
31, or any breach by the Servicer of a representation or warranty set forth
in
Section
31.02(a)
or in a
writing furnished pursuant to Section
31.02(b)
and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Section
31.02(b)
to the
extent made as of a date subsequent to such closing date, 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 or 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.
64
(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
31.04
or
31.05,
including (except as provided below) any failure by the Servicer to identify
pursuant to Section
31.06(b)
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 or 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.
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.
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.
[Signature
Page to Follow]
65
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to be signed
hereto by their respective officers there unto duly authorized as of the date
first above written.
| OWNER: | ||
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | ||
| By: ______________________________ | ||
|
Name:
|
||
|
Title:
|
||
| SERVICER: | ||
| GMAC MORTGAGE CORPORATION | ||
| By: ______________________________ | ||
|
Name:
|
||
|
Title:
|
||
[Signature
Page to Servicing Agreement]
EXHIBIT
A
COLLECTION
ACCOUNT LETTER AGREEMENT
____________,
2006
|
To:
|
[__________________________]
|
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of ___________________, we
hereby authorize and request that you establish an account, as a Collection
Account, to be designated as “GMAC Mortgage Corporation, as Servicer, in trust
for Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Owner”) and various Mortgagors.”
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Owner. You may refuse any deposit which would result in violation
of the requirement that the account be insured as described below. This letter
is submitted to you in duplicate. Please execute and return one original to
us.
| GMAC Mortgage Corporation | ||
| By:________________________ | ||
|
|
|
Name:
|
|
Title:
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number __________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The amount deposited at any time in the account will be insured
by the Federal Deposit Insurance Corporation through the Bank Insurance Fund
or
the Savings Association Insurance Fund to the maximum extent
available.
| [______________________________] | ||
|
(Depository)
|
||
| By:___________________________ | ||
|
Name:
|
||
|
Title:
|
A-1
EXHIBIT
B
ESCROW
ACCOUNT LETTER AGREEMENT
________________,
2006
|
To:
|
[__________________________]
|
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of ____________________, we
hereby authorize and request that you to establish an account, as an Escrow
Account, to be designated as “GMAC Mortgage Corporation, as Servicer, in trust
for Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Owner”) and various Mortgagors.”
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Owner. You may refuse any deposit which would result in violation
of the requirement that the account be insured as described below. This letter
is submitted to you in duplicate. Please execute and return one original to
us.
| GMAC Mortgage Corporation | ||
| By:________________________ | ||
|
|
|
Name:
|
|
Title:
|
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number _______ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The amount deposited at any time in the account will be insured
by the Federal Deposit Insurance Corporation through the Bank Insurance Fund
or
the Savings Association Insurance Fund to the maximum extent
available.
| By:________________________ | ||
|
|
|
Name:
|
|
Title:
|
||
|
Date:
|
B-1
EXHIBIT
C
CONTENTS
OF LEGAL FILE
With
respect to each Mortgage Loan, the Legal File shall include each of the
following items:
|
1.
|
The
original Note, bearing all intervening endorsements, endorsed, “Pay to the
order of _______________ without recourse” or “pay to the order of
_________________ without recourse” and signed in the name of the original
payee or by the last endorsee by an authorized
officer.
|
|
2.
|
Either:
(a) the original recorded Mortgage with recording information
thereon, together with a certified true copy of the original
power-of-attorney showing the recording information thereon, if the
Mortgage was executed by an attorney-in-fact; (b) a certified true
copy of the Mortgage and of the power of attorney (if applicable),
the
originals of which have been transmitted for recording, until such
time as
the originals are returned by the public recording office; or (c) a
copy of the Mortgage certified by the public recording office in
those
instances where the public recording office retains the original
or the
original is lost, together with a duplicate original mortgagee’s
certificate of title if the Mortgagee is registered under the Torrens
system.
|
|
3.
|
The
original Assignment of Mortgage for each Mortgage Loan, either in
blank or
in favor of the Owner, in form acceptable for recording but which
may not
have been recorded, signed in the name of the original mortgagee
or the
last assignee by an authorized
officer.
|
|
4.
|
A
copy of the title search and mortgagee title insurance commitment
or the
original mortgagee title insurance policy issued by an approved ALTA
title
insurance company.
|
|
5.
|
Originals
of all intervening assignments, if any, with evidence of recording
thereon, or certified true copies with evidence that the originals
have
been transmitted for recording until such time as the originals are
returned by the public recording office, or a copy of each such assignment
certified by the public recording office if such office retains the
original, or if such original is lost. If the payee of the Note assigned
the Note under a different name, whether as a result of a merger,
name
change, receivership, or other event which did not require separate
endorsement and assignment, certified copies of the documents evidencing
such events must be provided.
|
|
6.
|
Originals
of all assumption, modification, consolidation or extension agreements
with evidence of recording thereon, if
any.
|
C-1
EXHIBIT
D
CONTENTS
OF SERVICING FILE
With
respect to each Mortgage Loan, the Servicing File shall include each of the
following items:
|
1.
|
A
copy of each document in the Legal File, including each item listed
on
Exhibit
C
and any other item actually included in the Legal
File.
|
|
2.
|
A
survey or plat of the Mortgaged Property (except if the Mortgaged
Property
is a condominium unit), unless the title insurance contains a 116
or “no
survey” endorsement.
|
|
3.
|
Original
hazard insurance policy (or certificate of insurance for a condominium
or
planned unit development unit) and certificate or original policy
of flood
insurance, if applicable.
|
|
4.
|
Mortgage
Loan closing statement or a copy
thereof.
|
|
5.
|
Residential
Mortgage Loan application.
|
|
6.
|
Verification
of employment and income (if
applicable).
|
|
7.
|
Verification
of evidence of source and amount of down payment (if
applicable).
|
|
8.
|
Credit
report on the Obligor.
|
|
9.
|
Residential
appraisal report.
|
|
10.
|
Photograph
of the Mortgaged Property.
|
|
a.
|
Payment
records and current and historical computerized data files;
and
|
|
b.
|
tax
receipts, insurance premium receipts, ledger sheets, correspondence,
insurance claim files and correspondence, and all other papers and
records
developed or originated by Owner or others, required to document
the
Mortgage Loan or to service the Mortgage Loan; provided,
however,
that these items may be provided no later than 15 days after the
service transfer date.
|
|
11.
|
A
copy of the guarantee(s), if any.
|
|
12.
|
Copies
of each security agreement, chattel mortgage or equivalent, executed
in
connection with the Mortgage, if
any.
|
|
13.
|
Copy
of each instrument necessary to complete identification of any exception
set forth in the title policy, if
any.
|
D-1
|
14.
|
All
required disclosure statements, including a copy of the HUD good
faith
estimate, HUD-1 settlement statement and TILA disclosure statement
prepared in connection with the Mortgage Loan indicating that the
Obligor
has received all disclosures required by RESPA and
TILA.
|
|
15.
|
Termite
reports, structural engineer’s report, water potability and septic
certification, if any.
|
|
16.
|
Sales
contract, if any.
|
|
17.
|
If
the Mortgaged Property is a leasehold estate, a copy of the lease
with
evidence of recording thereon (or, if such recorded copy has not
yet been
returned by the applicable recording office, a copy thereof certified
to
be a true, correct and complete copy of such lease sent for
recording).
|
|
18.
|
Any
and all documents, agreements or instruments related to the Mortgage
Loan
or the Note and Owner’s right and benefits therein; all documents related
to the making and closing of the Mortgage Loan; and any other documents,
agreements, or instruments related to the Mortgage Loan or required
by
Owner, in order to enable Owner to sell the Mortgage Loan to a private
investor or as part of a securitization or other financing
vehicle.
|
|
19.
|
A
statement showing the account number, customer name, unpaid principal
balance of the Mortgage Loan, the amount of periodic installments
and the
date(s) to which principal, interest and any escrows have been paid,
the
accrued but unpaid interest up to and including the Closing Date;
provided,
however,
that this information may be provided in a trial balance; and, if
required
by Owner, a ledger card or ledger history reflecting all receipts
and
disbursements.
|
|
20.
|
The
federal and state fair fending and equal credit notices, including
the
truth-in-lending statement and rescission notices, if
applicable.
|
D-2
EXHIBIT
E
INFORMATION
INCLUDED ON MORTGAGE LOAN SCHEDULE
|
1.
|
Servicer
loan number;
|
|
2.
|
Originator
or investor loan number;
|
|
3.
|
Mortgagor
last name;
|
|
4.
|
Current
Owner;
|
|
5.
|
Original
loan balance;
|
|
6.
|
Unpaid
principal balance;
|
|
7.
|
Principal
balance purchased;
|
|
8.
|
Mortgage
Interest Rate;
|
|
9.
|
Next
due date;
|
|
10.
|
Mortgage
Loan product type; and
|
|
11.
|
Such
other information as the Interim Servicer may reasonably
require.
|
E-1
EXHIBIT
F
ACKNOWLEDGMENT
AGREEMENT
On
this
____ day of ____________, ____, Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
“Owner”),
as
the Owner under the First Amended and Restated Servicing Agreement, dated as
of
January 1, 2006 (the “Agreement”),
does
hereby transfer to GMAC Mortgage Corporation (the “Servicer”),
as
Servicer under the Agreement, the Servicing responsibilities related to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as
Schedule
F-1.
The
Servicer hereby accepts the Servicing responsibilities transferred hereby and
on
the date hereof assumes all Servicing responsibilities related to the Mortgage
Loans identified on the attached Mortgage Loan Schedule all in accordance with
the Agreement. The contents of each Servicing File required to be delivered
to
service the Mortgage Loans pursuant to the Agreement have been or shall be
delivered to the Servicer by the Owner in accordance with the terms of the
Agreement.
With
respect to the Mortgage Loans made subject to the Agreement hereby, the Closing
Date shall be _______________.
All
other
terms and conditions of this transaction shall be governed by the
Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
This
Acknowledgment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Owner and the Servicer have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
| OWNER: | ||
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | ||
| By:____________________________ | ||
|
Name:
|
||
|
Title:
|
F-1
| SERVICER: | ||
| GMAC MORTGAGE CORPORATION | ||
| By:________________________ | ||
|
Name:
|
||
|
Title:
|
F-2
EXHIBIT
G
FORM
OF
INDEMNIFICATION AND
CONTRIBUTION
AGREEMENT
[THIS
INDEMNIFICATION AND CONTRIBUTION AGREEMENT, dated [_________] (“Agreement”),
among
Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation (the “Depositor”),
Xxxxxx Xxxxxxx & Co. Incorporated, as representative (the “Representative”)
of
itself, [________] and [_________] (together, the “Underwriters”),
and
GMAC Mortgage Corporation, a [___________] [corporation] (the “Servicer”).
W
I T
N E S S E T H:
WHEREAS,
Xxxxxx Xxxxxxx Mortgage Capital Inc. (the “Purchaser”),
an
affiliate of the Depositor, purchased the Mortgage Loans in anticipation of
the
securitization transaction;
WHEREAS,
the Purchaser will transfer, assign and convey the Mortgage Loans to the
Depositor and the Depositor will thereupon transfer, assign and convey the
Mortgage Loans to the trust created by the Pooling and Servicing Agreement
(as
defined herein);
WHEREAS,
as an inducement to the Depositor to enter into the Pooling and Servicing
Agreement, and the Underwriters to enter into the Underwriting Agreement (as
defined herein) and the Initial Purchasers to enter into the Certificate
Purchase Agreement (as defined herein), the Servicer wishes to provide for
indemnification and contribution on the terms and conditions hereinafter set
forth;
NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
1.1 Certain
Defined Terms.
The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
1933
Act:
The
Securities Act of 1933, as amended.
1934
Act:
The
Securities Exchange Act of 1934, as amended.
“ABS
Informational and Computational Material”
means
any written communication as defined in Item 1101(a) of Regulation AB under
the
1933 Act and the 1934 Act, as may be amended from time to time.
Exh.
G-1
Agreement:
This
Indemnification and Contribution Agreement, as the same may be amended in
accordance with the terms hereof.
Certificate
Purchase Agreement:
The
Purchase Agreement, dated as of [_______], among the Depositor and the Initial
Purchasers, relating to the Privately Offered Certificates.
Depositor
Information:
All
information in the Prospectus Supplement or the Private Placement Memorandum
other than Servicer Information and Originator Information.
“Free
Writing Prospectus”
means
any written communication that constitutes a “free writing prospectus,” as
defined in Rule 405 under the 1933 Act.
Indemnifying
Party:
Either
the Servicer or the Depositor, as applicable.
Originator
Information:
All
information in the Prospectus supplement or the Private Placement Memorandum
that specifically relates to any Originator, any Originator’s underwriting
guidelines and the related Mortgage Loans, the Mortgaged Properties or the
Mortgagors.
Person:
Any
individual, corporation, limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pooling
and Servicing Agreement:
The
Pooling and Servicing Agreement, dated as of [_________], among the Depositor,
[the Servicer], [NAMES OF RESPONSIBLE PARTIES], [NAME OF OTHER SERVICERS] and
[NAME OF TRUSTEE].
Privately
Offered Certificates:
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust [_________], Mortgage Pass-Through
Certificates, Series [_________], Class [__] Certificates issued
pursuant to the Pooling and Servicing Agreement.
Private
Placement Memorandum:
The
private placement memorandum, dated [_________], relating to the offering of
the
Privately Offered Certificates.
Prospectus
Supplement:
The
prospectus supplement, dated [_________], relating to the offering of the
Publicly Offered Certificates.
Publicly
Offered Certificates:
Xxxxxx
Xxxxxxx ABS Capital I Inc. Trust [_________], Mortgage Pass-through
Certificates, [_________],[_________] Certificates issued pursuant to the
Pooling and Servicing Agreement.
Responsible
Party Information:
All
information in the Prospectus Supplement, ABS Informational and Computational
Materials, Free Writing Prospectus or the Private Placement Memorandum
(i) contained under the headings “Transaction Overview—Parties—The Original
Loan Sellers—[NAME OF RESPONSIBLE PARTY]”, “The Mortgage Loan Pool—Underwriting
Guidelines—[NAME OF RESPONSIBLE PARTY]” (or similarly titled sections), and (ii)
regarding the Mortgage Loans, the related mortgagors and/or the related
Mortgaged Properties (but in the case of this clause (ii), only to the extent
any untrue statement or omission arises from or is based upon errors or
omissions in the information concerning the Mortgage Loans, the related
mortgagors and/or the related Mortgaged Properties, as applicable, provided
to
the Depositor or any affiliate by or on behalf of the Responsible
Party).
Exh.
G-2
Servicer
Information:
All
information in the Prospectus Supplement, ABS Informational and Computational
Materials, Free Writing Prospectus or the Private Placement
Memorandum contained under the headings “Transaction
Overview—Parties—The Servicer[s]—[NAME OF SERVICER]” and “The Servicer[s]” (or
similarly titled sections).
Underwriting
Agreement:
The
Underwriting Agreement, dated [_____], among the Depositor and the Underwriters,
relating to the sale of the Publicly Offered Certificates.
1.2 Other
Terms.
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Pooling and Servicing Agreement.
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES
Each party
hereto represents and warrants that:
(a) it
has
all requisite power and authority to execute, deliver and perform its
obligations under this Agreement;
(b) this
Agreement has been duly authorized, executed and delivered by such party;
and
(c) assuming
the due authorization, execution and delivery by each other party hereto, this
Agreement constitutes the legal, valid and binding obligation of such party,
except as such enforceability may be limited by bankruptcy, insolvency and
similar laws and equitable principles affecting the enforceability of the rights
of creditors generally.
ARTICLE
III.
INDEMNIFICATION
3.1 Indemnification
by Indemnifying Parties.
(a) The
Servicer agrees to indemnify and hold harmless the Depositor and the
Underwriters and their respective directors and officers and each Person, if
any, that controls the Depositor or the respective Underwriters, within the
meaning of either Section 15 of the 1933 Act or the Section 20 of the 1934
Act,
against any and all actual losses, claims, damages or liabilities to which
the
Depositor or the Underwriters or any such director, officer or controlling
Person may become subject, under the 1933 Act, the 1934 Act or otherwise, to
the
extent that such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of any material
fact contained in the Servicer Information in the Prospectus Supplement, ABS
Informational and Computational Materials, the Free Writing Prospectus, the
Private Placement Memorandum or any amendment or supplement thereto, or arise
out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light
of
the circumstances in which they were made, not misleading, and the Servicer
shall in each case reimburse the Depositor and the Underwriters, and each such
director, officer and controlling Person for any legal or other expenses
reasonably incurred by the Depositor and the Underwriters, and each such
director, officer or controlling Person, in connection with defending any such
loss, claim, damage, liability or action. The Servicer’s liability under this
Section 3.1 shall be in addition to any other liability that the Servicer
may otherwise have.
Exh.
G-3
(b) The
Purchaser agrees to indemnify and hold harmless the Servicer, its directors
and
officers and each Person, if any, that controls the Servicer, within the meaning
of either Section 15 of the 1933 Act or the Section 20 of the 1934 Act, against
any and all actual losses, claims, damages or liabilities to which the Servicer
or any such director, officer or controlling Person may become subject, under
the 1933 Act, the 1934 Act or otherwise, to the extent that such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement of any material fact contained in the Depositor
Information in the Prospectus Supplement, ABS Informational and Computational
Materials, the Free Writing Prospectus, the Private Placement Memorandum or
any
amendment or supplement thereto, or arise out of or are based upon the omission
to state therein a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they were
made, not misleading, and the Depositor shall in each case reimburse the
Servicer, and each such director, officer and controlling Person for any legal
or other expenses reasonably incurred by the Servicer and each such director,
officer or controlling Person, in connection with investigating or defending
any
such loss, claim, damage, liability or action. The Depositor’s liability under
this Section 3.1 shall be in addition to any other liability that the
Depositor may otherwise have.
(c) If
the
indemnification provided for in this Section 3.1 shall for any reason be
held to be unavailable to an indemnified party under this Section 3.1 which
would otherwise be obligated to indemnify with respect thereto, on the one
hand,
and the parties which would otherwise be entitled to be indemnified, on the
other, shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated herein and incurred by the parties
hereto in such proportions that are appropriate to reflect the relative fault
of
the Depositor, on the one hand, and the Servicer, on the other hand, in
connection with the applicable misstatements or omissions. Notwithstanding
the
foregoing, no Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f)
of the
0000 Xxx) shall be entitled to contribution from any Person that was not guilty
of such fraudulent misrepresentation. For purposes of this Section 3.1,
each director of a party to this Agreement and each Person, if any, that
controls a party to this Agreement within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such party.
Exh.
G-4
3.4 Notification;
Procedural Matters.
Promptly
after receipt by an indemnified party under Section 3.1 of notice of any
claim or the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the applicable Indemnifying
Party
(or if a claim for contribution is to be made against another party) under
Section 3.1 hereof, notify the applicable Indemnifying Party (or other
contributing party) in writing of the claim or the commencement of such action;
provided,
however,
that
the failure to notify the applicable Indemnifying Party (or other contributing
party) shall not relieve it from any liability it may have under Section 3.1
except to the extent it has been materially prejudiced by such failure; and
provided further,
however,
that
the failure to notify the applicable Indemnifying Party shall not relieve it
from any liability it may have to any indemnified party (or to the party
requesting contribution) otherwise than under Section 3.1 hereof. In case
any such action is brought against any indemnified party and it notifies the
applicable Indemnifying Party of the commencement thereof, the applicable
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, the applicable
Indemnifying Party elects to assume the defense thereof, it may do so with
counsel reasonably satisfactory to such indemnified party; provided,
however,
that if
the defendants in any such action include both the indemnified party and the
applicable Indemnifying Party and the indemnified party or parties shall
reasonably have concluded that there may be legal defenses available to it
or
them and/or other indemnified parties that are different from or additional
to
those available to the applicable Indemnifying Party, the indemnified party
or
parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf
of
such indemnified party or parties. Upon receipt of notice from the applicable
Indemnifying Party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of such counsel,
the applicable Indemnifying Party shall not be liable to such indemnified party
under this paragraph for any legal or other expenses subsequently incurred
by
such indemnified party in connection with the defense thereof, unless
(i) the indemnified party shall have employed separate counsel (plus any
local counsel) in connection with the assertion of legal defenses in accordance
with the proviso to the immediately preceding sentence, (ii) the applicable
Indemnifying Party shall not have employed counsel reasonably satisfactory
to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the
applicable Indemnifying Party shall have authorized in writing the employment
of
counsel for the indemnified party at the expense of the applicable Indemnifying
Party. No party shall be liable for contribution with respect to any action
or
claim settled without its consent, which shall not be unreasonably withheld.
In
no event shall the applicable Indemnifying Party be liable for the fees and
expenses of more than one counsel representing the indemnified parties (in
addition to any local counsel) separate from its own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances.
Exh.
G-5
ARTICLE
IV.
GENERAL
4.1 Survival.
This
Agreement and the obligations of the parties hereunder shall survive the
purchase and sale of the Publicly Offered Certificates and Privately Offered
Certificates.
4.2 Successors.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
Persons referred to in Article III hereof and their respective successors
and assigns, and no other Person shall have any right or obligation
hereunder.
4.3 Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to principles of conflict of
laws.
4.4 Miscellaneous.
Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against which enforcement
of
such change, waiver, discharge or termination is sought. This Agreement may
be
signed in any number of counterparts, each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
4.5 Notices.
All
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered to (a) in the case of the Depositor, Xxxxxx
Xxxxxxx ABS Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxxx, with a copy to Xxxxxx Xxxxxxx ABS Capital I Inc., 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxx, Esq.; (b) in the case
of the Underwriters, Xxxxxx Xxxxxxx & Co. Incorporated, on behalf of itself
and as Representative of the several Underwriters, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Xxxxxxxx Xxxxx, Esq.; and (c) in the case of the
Servicer, [_________],[_________], Attention: [_________], with a copy to
[_________],[_________], Attention: [_________].
4.6 Submission
To Jurisdiction; Waivers.
Each
Indemnifying Party hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
Exh.
G-6
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
4.7 Waiver
of Trial by Jury.
EACH
INDEMNIFYING PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY
JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SIGNATURE
PAGE FOLLOWS
Exh.
G-7
IN
WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the date first above written.
|
XXXXXX XXXXXXX ABS
CAPITAL
I INC.
|
||
| By:_________________ | ||
| Name: | ||
| Title: | ||
| [_________] | ||
| By:_________________ | ||
| Name: | ||
| Title: | ||
|
XXXXXX
XXXXXXX & CO. INCORPORATED, as Representative of the
Underwriters
|
||
| By:____________________ | ||
| Name: | ||
| Title: | ||
| GMAC MORTGAGE CORPORATION, | ||
| By:____________________ | ||
| Name: | ||
| Title: |
G-1
EXHIBIT
H
SERVICE
RELEASE AND TRANSFER OF OWNERSHIP AGREEMENT
THIS
SERVICE RELEASE AND TRANSFER OF OWNERSHIP AGREEMENT (the “Service
Transfer Agreement”),
dated
as of _____________, _____ (the “Servicing
Transfer Date”),
is
made and entered into by and among _____________________________, as the
original owner (herein referred to as the “Original
Owner”),
_____________________, as the successor owner (herein referred to as the
“Owner”),
and
GMAC Mortgage Corporation, a Pennsylvania corporation, as the servicer (herein
referred to as the “Servicer”).
RECITALS
WHEREAS,
on _____________, the Original Owner and the Servicer entered into a Servicing
Agreement (the “Servicing
Agreement”),
to
provide for the Servicing of the Original Owner’s mortgage loans by the
Servicer;
WHEREAS,
the Original Owner desires to transfer its ownership of the Mortgage Loans
directly to the Owner, and the Owner desires to accept such
transfer;
WHEREAS,
the Original Owner, the Owner and the Servicer desire that the Servicing
Agreement shall govern all Mortgage Loan transfers and that all Mortgage Loans
so transferred (the “Transferred
Mortgage Loans”)
shall
continue to be subject to and serviced pursuant to the Servicing
Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the Owner and the Servicer hereby agree as
follows:
|
1.
|
Transfer
of Ownership of the Mortgage Loans.
As of the Servicing Transfer Date, the Original Owner hereby transfers
all
of its right, title and interest in the Mortgage Loans to the Owner,
and
the Owner hereby accepts such transfer in accordance with the terms
of
this Service Transfer Agreement.
|
|
2.
|
Servicing
of the Mortgage Loans.
The Servicing Agreement shall govern all Mortgage Loan transfers
and the
Servicer shall service the Transferred Mortgage Loans pursuant to
the
terms and conditions of the Servicing
Agreement.
|
|
3.
|
Servicing
Fee Rate.
The Servicing Fee Rate for Servicing the Transferred Mortgage Loans
shall
be no less than ______________.
|
|
4.
|
Custodial
Accounts.
The Collection Account and Escrow Account shall be
entitled:
|
|
5.
|
Servicing
Advances.
The parties hereby agree that the Servicer shall have the right to
reimburse itself for any unreimbursed Servicing Advances owed to
it by the
Original Owner directly from the Collection Account. If funds in
the
Collection Account are insufficient to reimburse the Servicer for
any
unreimbursed Servicing Advances, the Original Owner shall directly
reimburse the Servicer from its own funds within five (5) Business
Days of
receipt from the Servicer of a notification or invoice itemizing
the
unreimbursed Servicing Advances. Notwithstanding the foregoing, if
upon
the Servicing Transfer Date.
|
H-1
|
6.
|
Schedule
of Transferred Mortgage Loans.
The Transferred Mortgage Loans that are subject to this Servicing
Transfer
Agreement are listed in Schedule
H-1,
attached hereto and made a part
hereof.
|
|
7.
|
Miscellaneous.
|
|
a.
|
This
Servicing Transfer Agreement is hereby fully incorporated into and
made
part of the Servicing Agreement.
|
|
b.
|
Capitalized
terms used herein and not otherwise defined shall have the meanings
set
forth in the Servicing Agreement.
|
|
c.
|
The
Servicing Agreement, as amended by this Servicing Transfer Agreement,
is
hereby ratified and confirmed by the Owner and the
Servicer.
|
IN
WITNESSETH WHEREOF, the Original Owner, the Owner, and the Servicer have caused
their names to be signed by their respective officers thereunto duly authorized
as of the day and year first above written.
| ORIGINAL OWNER | ||
| _______________________ | ||
| By:________________________ | ||
| OWNER | ||
| _______________________ | ||
| By:________________________ |
H-2
| SERVICER | ||
| GMAC MORTGAGE CORPORATION | ||
| By:__________________ | ||
|
Name:
|
||
|
Title:
|
H-3
EXHIBIT
I
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”),
among [IDENTIFY PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”),
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 Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance
Statement”),
the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange
Act”)
and
Item 1122 of Regulation AB (the “Servicing
Assessment”),
the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the “Attestation
Report”),
and
all servicing reports, officer’s certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the
“Company
Servicing Information”);
2. Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
3. Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
4. I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
5. The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company 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.
| Date:_______________________ | ||
| By:________________________ | ||
|
Name:
|
||
|
Title:
|
||
I-1
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [Subservicer] shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
| [NAME OF SERVICER] [SUBSERVICER] | ||
| Date: | ||
| By:______________________________ | ||
|
Name:
|
||
|
Title:
|
J-1
SCHEDULE I
REPORTS
PREPARED BY THE SERVICER
|
1.
|
Mortgage
Loan level detail of such remittance allocable to
principal;
|
|
2.
|
Mortgage
Loan level detail of such remittance allocable to
curtailments;
|
|
3.
|
Mortgage
Loan level detail of such remittance allocable to
payoffs;
|
|
4.
|
Mortgage
Loan level detail of such remittance allocable to
interest;
|
|
5.
|
Mortgage
Loan level detail of the outstanding principal balance of the Mortgage
Loans as of the close of business on the related Determination
Date;
|
|
6.
|
Mortgage
Loan level detail of accrued interest
income;
|
|
7.
|
Mortgage
Loan level detail of charge-offs and recoveries, including accounts
settled short;
|
|
8.
|
Mortgage
Loan level detail for:
|
|
a.
|
Prepayment
charges
|
|
b.
|
Servicing
Advances - reimbursed and
non-reimbursed
|
|
c.
|
Due
Dates
|
|
d.
|
Current
interest rate
|
|
e.
|
Current
P&I payments
|
|
f.
|
Escrow
balance
|
|
g.
|
Suspense
balance
|
|
9.
|
The
weighted average maturity of the Mortgage Loans as of the close of
business on the applicable Determination
Date;
|
|
10.
|
The
number and aggregate principal balances of Mortgage Loans
(a) Delinquent (i) 30 days, (ii) 60 days, (iii) 90
days or more, or (iv) 120 days or more; (b) as to which foreclosure
has commenced; (c) in Bankruptcy; and (d) as to which REO Property
has been acquired;
|
|
11.
|
Book
values for all REO Property, including
expenses;
|
|
12.
|
Other
portfolio data as agreed upon by both parties;
and
|
|
13.
|
Any
other reports as deemed necessary at securitization and reasonably
prepared by the Servicer.
|
I-1
SCHEDULE II
[RESERVED]
II-1
SCHEDULE III
PREPAYMENT
PENALTY SCHEDULE
(To
be
provided by Xxxxxx Xxxxxxx)
III-1
