SERVICING AGREEMENT Dated and effective as of October 1, 2004 CITIGROUP GLOBAL MARKETS REALTY CORP.
Dated
and
effective as of October 1, 2004
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Owner)
AND
GMAC
MORTGAGE CORPORATION
(Servicer)
TABLE
OF
CONTENTS
_____________________
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ARTICLE
I
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|
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DEFINITIONS
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|
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ARTICLE
II
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|
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REPRESENTATIONS,
WARRANTIES AND COVENANTS
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Section
2.01
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Representations,
Warranties and Covenants of Servicer.
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ARTICLE
III
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POSSESSION
OF SERVICING FILES; BOOKS AND RECORDS; DELIVERY OF MORTGAGE LOAN
DOCUMENTS
MASTER SERVICER
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Section
3.01
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Contract
for Servicing; Possession of Servicing Files.
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Section
3.02
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Maintenance
of Servicing Files.
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Section
3.03
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Books
and Records.
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Section
3.04
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Transfer
of Mortgage Loans.
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Section
3.05
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Delivery
of Mortgage Loan Documents.
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Section
3.06
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Quality
Control Procedures.
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Section
3.07
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Master
Servicer.
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ARTICLE
IV
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ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
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Section
4.01
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Servicer
to Act as Servicer.
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Section
4.02
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Collection
of Mortgage Loan Payments.
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Section
4.03
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Realization
Upon Defaulted Mortgage Loans.
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Section
4.04
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Establishment
of Custodial Accounts; Depositsin Custodial Accounts.
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Section
4.05
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Permitted
Withdrawals From the Custodial Account.
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Section
4.06
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Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
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Section
4.07
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Permitted
Withdrawals From Escrow Account.
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Section
4.08
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Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary
Insurance Policies; Collections Thereunder.
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Section
4.09
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Transfer
of Accounts.
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Section
4.10
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Maintenance
of Hazard Insurance.
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Section
4.11
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Maintenance
of Mortgage Impairment Insurance Policy.
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Section
4.12
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Fidelity
Bond, Errors and Omissions Insurance.
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Section
4.13
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Title,
Management and Disposition of REO Property.
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Section
4.14
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Distributions.
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Section
4.15
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Remittance
Reports.
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Section
4.16
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Statements
to the Owner.
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Section
4.17
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[Reserved].
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Section
4.18
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[Reserved].
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Section
4.19
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Assumption
Agreements.
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Section
4.20
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Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
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Section
4.21
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Monthly
Advances by the Servicer.
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Section
4.22
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Servicing
Compensation.
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Section
4.23
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Notification
of Adjustments.
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Section
4.24
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Statement
as to Compliance.
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Section
4.25
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Independent
Public Accountants’ Servicing Report.
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Section
4.26
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Back-up
Certification.
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Section
4.27
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Access
to Certain Documentation.
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Section
4.28
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Reports
and Returns to be Filed by the Servicer.
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Section
4.29
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Compliance
with REMIC Provisions.
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Section
4.30
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Superior
Liens.
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ARTICLE
V
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MERGER
OR CONSOLIDATION; INDEMNIFICATION
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Section
5.01
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Merger
or Consolidation of the Servicer.
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Section
5.02
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Indemnification.
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Section
5.03
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Limitation
of Liability.
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Section
5.04
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Servicer
Not to Resign.
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ARTICLE
VI
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DEFAULT
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Section
6.01
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Events
of Default.
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ARTICLE
VII
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TERMINATION
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Section
7.01
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Termination.
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Section
7.02
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Successor
to the Servicer.
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ARTICLE
VIII
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RECONSTITUTION
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Section
8.01
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Reconstitution
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ARTICLE
IX
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MISCELLANEOUS
PROVISIONS
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Section
9.01
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Amendment.
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Section
9.02
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Recordation
of Agreement.
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Section
9.03
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Duration
of Agreement.
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Section
9.04
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Governing
Law.
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Section
9.05
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General
Interpretive Principles.
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Section
9.06
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Notices.
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Section
9.07
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Severability
of Provisions.
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Section
9.08
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No
Partnership.
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Section
9.09
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Execution;
Successors and Assigns.
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Section
9.10
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No
Transfer of Servicing.
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Section
9.11
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Successors
and Assigns.
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Section
9.12
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Non
solicitation.
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Section
9.13
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Financial
Statements.
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Section
9.14
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Waivers.
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Section
9.15
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Exhibits.
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Section
9.16
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Reproduction
of Documents.
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Section
9.17
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Confidentiality
of Information.
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Section
9.18
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Entire
Agreement.
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Section
9.19
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Further
Agreements.
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EXHIBITS
EXHIBIT
A Mortgage
Loan Schedule
EXHIBIT
B Servicing
Officers
EXHIBIT
C Custodial
Account Letter Agreement
EXHIBIT
D Escrow
Account Letter Agreement
EXHIBIT
E Xxxxxxxx-Xxxxx
Back-Up Certificate
EXHIBIT
F Acknowledgment
Agreement
EXHIBIT
G Request
for Release
This
is a
Servicing Agreement, dated and effective as of October 1, 2004, and is executed
among Citigroup Global Markets Realty Corp. (the “Owner”) and GMAC Mortgage
Corporation, as Servicer (the “Servicer”).
WHEREAS,
the Owner shall, from time to time, purchase mortgage loans on a
servicing-retained basis (the “Mortgage Loans”), which Mortgage Loans shall be
set forth on a mortgage loan schedule delivered by the Owner to the Servicer
and
annexed hereto as Exhibit A;
WHEREAS,
the Servicer owns the Servicing (as defined herein) with respect to such
Mortgage Loans;
WHEREAS,
the Owner desires for the Servicer to service, and the Servicer hereby agrees
to
service, the Mortgage Loans on the Owner’s behalf;
WHEREAS,
the Owner may appoint a master servicer to master service the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual covenants made herein, and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
“Accepted
Servicing Practices”: With respect to any Mortgage Loan or REO Property, those
mortgage servicing practices that the Servicer customarily employs and exercises
for its own account in servicing and administering mortgage loans of the same
type as such Mortgage Loan or REO Property in the jurisdiction where the related
Mortgaged Property is located (including, compliance with all applicable
federal, state and local laws).
“Acknowledgment
Agreement”: The document to be executed between the Owner and the Servicer on or
prior to each Closing Date in the form of Exhibit F hereto, which document
reflects the addition of Mortgage Loans which are subject to the terms and
conditions of this Agreement.
“Adjustable
Rate Mortgage Loan”: A Mortgage Loan which provides for the adjustment of the
Mortgage Interest Rate payable in respect thereto.
“Adjustment
Date”: With respect to each Adjustable Rate Mortgage Loan, the date set forth in
the related Mortgage Note on which the Mortgage Interest Rate on such Adjustable
Rate Mortgage Loan is adjusted in accordance with the terms of the related
Mortgage Note.
“Agreement”:
This Servicing Agreement including all exhibits, schedules, amendments and
supplements hereto.
“Assignment
of Mortgage”: An individual assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to give record
notice of the sale of the Mortgage to the Owner.
“Business
Day”: Any day other than a Saturday or Sunday, or a day on which banking and
savings and loan institutions in the Commonwealth of Pennsylvania or the State
of New York are authorized or obligated by law or executive order to be
closed.
“Closing
Date”: With respect to the transfer of servicing by Owner to Servicer 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, or any successor statute
thereto.
“Condemnation
Proceeds”: 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.
“Custodial
Account”: The separate account or accounts, each of which shall be an Eligible
Account, created and maintained pursuant to this Agreement, which shall be
entitled “GMAC Mortgage Corporation, as servicer, in trust for the Owner and
various Mortgagors, Adjustable Rate Mortgage Loans”, established at a financial
institution acceptable to the Owner.
“Custodian”:
The custodian designated by the Owner.
“Determination
Date”: With respect to each Distribution Date, the fifteenth (15th) day of the
calendar month in which such Distribution Date occurs or, if such fifteenth
(15th) day is not a Business Day, the Business Day immediately preceding such
fifteenth (15th) day.
“Distribution
Date”: The eighteenth (18th) day of each month, commencing on the eighteenth day
of the month next following the month in which the related Cut-off Date occurs,
or if such eighteenth (18th) day is not a Business Day, the first Business
Day
immediately preceding such eighteenth (18th) day.
“Due
Date”: With respect to each Distribution Date, the first day of the calendar
month in which such Distribution Date occurs, which is the day on which the
Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
“Due
Period”: With respect to each Distribution Date, the period commencing on the
second day of the month preceding the month of the Distribution Date and ending
on the first day of the month of the Distribution Date.
“Eligible
Account”: Either (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
and Poor’s, a division of the XxXxxx-Xxxx Companies or Prime-1 by Xxxxx’x
Investors Service, Inc. (or a comparable rating if another rating agency is
specified by the Owner by written notice to the Servicer) at the time any
amounts are held on deposit therein, (ii) an account or accounts 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.
“Escrow
Account”: The separate trust account or accounts created and maintained pursuant
to this Agreement which shall be entitled “GMAC Mortgage Corporation, as
servicer, in trust for the Owner and various Mortgagors, Adjustable Rate
Mortgage Loans”, established at a financial institution acceptable to the
Owner.
“Escrow
Payments”: The amounts constituting taxes, assessments, fire and hazard
insurance premiums and such other payments which may become a prior lien on
the
Mortgaged Property, required to be escrowed by the Mortgagor with the Mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
“Event
of
Default”: Any one of the events enumerated in Section 6.01.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended.
“FDIC”:
The Federal Deposit Insurance Corporation, or any successor
thereto.
“FHLMC”:
Xxxxxxx Mac or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased by the Servicer
pursuant to this Agreement), a determination made by the Servicer that all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a servicing officer of the Servicer, of each
Final
Recovery Determination.
“Fixed
Rate Mortgage Loan”: A Mortgage Loan with respect to which the Mortgage Interest
Rate set forth in the Mortgage Note is fixed for the term of such Mortgage
Loan.
“FNMA”:
Xxxxxx Mae or any successor thereto.
“Insurance
Proceeds”: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
“Liquidation
Proceeds”: 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.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan: A Mortgage Loan registered with the MERS® System.
MERS®
System: The system of recording transfers of Mortgages electronically maintained
by MERS.
“Monthly
Advance”: The aggregate of the advances made by the Servicer on any Distribution
Date pursuant to Section 4.21.
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled combined payment of
principal and interest payable by a Mortgagor under the related Mortgage Note
on
each Due Date.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first lien on
Mortgaged Property securing the Mortgage Note.
“Mortgagee”:
The mortgagee or beneficiary named in the Mortgage and the successors and
assigns of such mortgagee or beneficiary.
“Mortgage
Interest Rate”: With respect to each Fixed Rate Mortgage Loan, the fixed annual
rate of interest provided for in the related Mortgage Note and, with respect
to
each Adjustable Rate Mortgage Loan, the annual rate that interest accrues on
such Adjustable Rate Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note.
Mortgage
Loan Documents: The original mortgage loan legal documents held by the
Custodian.
“Mortgage
Loan Schedule”: The schedule of Mortgage Loans, which schedule shall be attached
to the applicable Acknowledgment Agreement and deemed to supplement this
Agreement and become a part hereof on the related Closing Date.
“Mortgage
Note”: The original executed note or other evidence of the Mortgage Loan
indebtedness of a Mortgagor.
“Mortgaged
Property”: The Mortgagor’s real property securing repayment of a related
Mortgage Note, consisting of a fee simple interest in a single parcel of real
property improved by a Residential Dwelling.
“Mortgagee”:
The mortgagee or beneficiary named in the Mortgage and the successors and
assigns of such mortgagee or beneficiary.
“Mortgagor”:
The obligor on a Mortgage Note, the owner of the Mortgaged Property and the
grantor or mortgagor named in the related Mortgage and such grantor’s or
mortgagor’s successor’s in title to the Mortgaged Property.
“Nonrecoverable
Monthly Advance”: Any Monthly Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not, or, in the case of a proposed Monthly
Advance, would not be, ultimately recoverable from related late payments,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
“Officer’s
Certificate”: A certificate signed by the Chairman of the Board or the Vice
Chairman of the Board or a President or a Vice President and by the Treasurer
or
the Secretary or one of the Assistant Treasurers or Assistant Secretaries of
the
Person on behalf of whom such certificate is being delivered.
“Opinion
of Counsel”: A written opinion of counsel, who may be salaried counsel for the
Person on behalf of whom the opinion is being given, reasonably acceptable
to
each Person to whom such opinion is addressed.
“Pass-Through
Transfer”: The sale or transfer of some or all of the Mortgage Loans by the
Owner to a trust to be formed as part of a publicly issued or privately placed
mortgage-backed securities transaction.
“Person”:
An individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Prepayment
Charge”: With respect to any Mortgage Loan, any prepayment penalty or premium
thereon payable in connection with a principal prepayment on such Mortgage
Loan
pursuant to the terms of the related Mortgage Note.
“Principal
Prepayment”: Any payment or other recovery of principal on a Mortgage Loan which
is received in advance of its scheduled Due Date, including any Prepayment
Charge, 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.
“Reconstitution
Agreements”: The agreement or agreements entered into by the Servicer and the
Owner and/or certain third parties on the Reconstitution Date or Dates with
respect to any or all of the Mortgage Loans serviced hereunder, in connection
with a Whole Loan Transfer or a Pass-Through Transfer as provided in Article
7.
“Reconstitution
Date”: The date or dates on which any or all of the Mortgage Loans serviced
under this Agreement shall be removed from this Agreement and reconstituted
as
part of a Whole Loan Transfer or Pass-Through Transfer pursuant to Article
7
hereof.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
Provisions”: Provisions of the federal income tax law relating to REMIC’s, which
appear in Sections 860A through 860G of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
“REO
Account”: The separate trust account or accounts created and maintained pursuant
to this Agreement which shall be entitled “GMAC Mortgage Corporation in trust
for the Owner, as of [date of acquisition of title], Adjustable Rate Mortgage
Loans”.
“REO
Disposition”: The final sale by the Servicer of any REO Property.
“REO
Property”: A Mortgaged Property acquired as a result of the liquidation of a
Mortgage Loan.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
FNMA eligible condominium project, or (iv) a detached one-family dwelling in
a
planned unit development, none of which is a co-operative, mobile or
manufactured home.
“Servicing
Advances”: All customary, reasonable and necessary “out-of-pocket” costs and
expenses incurred by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) preservation,
restoration and repair of a Mortgaged Property, (ii) any enforcement or judicial
proceedings with respect to a Mortgage Loan, including foreclosure actions
and
(iii) the management and liquidation of REO Property.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual servicing fee
the Owner shall pay to the Servicer, which shall, for each month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the unpaid
principal balance of the Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respectively
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Owner to pay the Servicing Fee is limited to, and payable solely from,
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds and other proceeds, to the extent permitted by Section 4.05) of related
Monthly Payment collected by the Servicer, or as otherwise proved under Section
4.05. If the Preliminary Servicing Period includes any partial month, the
Servicing Fee for such month shall be pro rated at a per diem rate based upon
a
30-day month.
“Servicing
Fee Rate”: The per annum rate at which the Servicing Fee accrues with respect to
the Mortgage Loans as set forth in the related Acknowledgment Agreement, which
rate shall be equal to the quotient of the annual Servicing Fee payable with
respect to any Mortgage Loan divided by the Stated Principal Balance of the
Mortgage Loan as of any date of determination.
“Servicing
File”: The documents, records and other items pertaining to a particular
Mortgage Loan, and any additional documents relating to such Mortgage Loan
as
are in, or as may from time to time come into, the Servicer’s
possession.
“Stated
Principal Balance”: As to each Mortgage Loan as of any date of determination,
(i) the principal balance of the Mortgage Loan as of the Cut-off Date after
giving effect to payments of principal due on or before such date, whether
or
not collected from the Mortgagor on or before such date, minus (ii) all amounts
previously distributed to the Owner with respect to the related Mortgage Loan
representing payments or recoveries of principal.
“Whole
Loan Transfer”: Any sale or transfer of some or all of the Mortgage Loans by the
Owner to a third party, which sale or transfer is not a Pass-Through
Transfer.
ARTICLE
II
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
2.01 Representations,
Warranties and Covenants of Servicer.
The
Servicer represents and warrants to, and covenants with, the Owner that as
of
the date hereof and as of each Closing Date:
(a) The
Servicer (i) is a corporation duly organized, validly existing, and in good
standing under the laws of the Commonwealth of Pennsylvania, (ii) has all
licenses necessary to carry on its business as now being conducted, except
for
such licenses, the absence of which individually or in the aggregate, would
not
have a material adverse effect on the ability of the Servicer to conduct its
business as it is presently conducted, (iii) is licensed, qualified and in
good
standing under the laws of each state where a Mortgaged Property is located
if
the laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Servicer and (iv) is in compliance with
the laws of any such state to the extent necessary to permit the servicing
of
the Mortgage Loans in accordance with the terms of this Agreement.
(b) The
Servicer has the full power and authority to execute and deliver this Agreement,
and to enter into and consummate all transactions contemplated by this
Agreement. The Servicer has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement,
and 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, subject to applicable
bankruptcy and insolvency laws affecting the rights of creditors generally
and
to general principles of equity (regardless of whether enforcement of such
remedies is considered in a proceeding in equity or law).
(c) The
execution and delivery of this Agreement by the Servicer, the servicing of
the
Mortgage Loans by the Servicer hereunder, the consummation of any other of
the
transactions contemplated hereunder, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Servicer and
will
not (i) result in a breach of any term or provision of the articles of
incorporation or by-laws of the Servicer or (ii) conflict with, result in a
breach, violate, or result in a default under or acceleration of, the terms
of
any material agreement, indenture or loan or credit agreement or other material
instrument to which the Servicer is a party or by which it may be bound, or
(iii) constitute a violation of any statute, rule, regulation, order, judgment
or decree applicable to the Servicer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Servicer;
(d) The
Servicer is an approved FNMA and FHLMC servicer in good standing with the
requisite financial criteria and adequate resources to complete the transactions
contemplated hereby pursuant to the terms hereof;
(e) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant applicable to it and contained in
this
Agreement; and
(f) There
is
no action, suit, proceeding or investigation pending or, to its best knowledge,
threatened against the Servicer that, either individually or in the aggregate,
may result in any material impairment of the right or ability of the Servicer
to
carry on its business substantially as now conducted or in any material
liability on the part of the Servicer, or that would draw into question the
validity of this Agreement or of any action taken or to be taken in connection
with the obligations of the Servicer contemplated herein, or that would be
likely to impair materially the ability of the Servicer to perform under the
terms of this Agreement.
ARTICLE
III
POSSESSION
OF SERVICING FILES;
BOOKS
AND RECORDS;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
MASTER
SERVICER
Section
3.01 Contract
for Servicing; Possession of Servicing Files.
The
Owner, by execution and delivery of this Agreement (and the related
Acknowledgment Agreement), does hereby contract with the Servicer, subject
to
the terms of this Agreement, for the servicing of the Mortgage Loans. On or
before each Closing Date, the Owner shall transfer or cause to be transferred
the Servicing Files with respect to the Mortgage Loans listed on the related
Mortgage Loan Schedule to the Servicer. On or before each Closing Date, the
Owner and Servicer shall execute and deliver an Acknowledgment Agreement,
including the related Mortgage Loan Schedule, which Acknowledgment Agreement
shall be deemed executed and delivered simultaneously by the Servicer to the
Owner. Each Servicing File delivered to the Servicer shall be held by the
Servicer to service the Mortgage Loans pursuant to this Agreement and are and
shall be held in trust by the Servicer for the benefit of the Owner. In
addition, on or prior to the initial Closing Date, and if requested by the
Owner, any subsequent Closing Date, the Servicer shall submit to the Owner
a
fully executed original of an Officer’s Certificate in the form attached as
Exhibit B hereto.
Section
3.02 Maintenance
of Servicing Files.
The
Servicer shall maintain a Servicing File consisting of all documents necessary
to service the Mortgage Loans to the extent provided to or received by the
Servicer. The possession of each Servicing File by the Servicer is for the
sole
purpose of servicing the Mortgage Loan, and such retention and possession by
the
Servicer is in a custodial capacity only. The Servicer acknowledges that the
ownership of each Mortgage Loan, including the Note, the Mortgage, all other
Mortgage Loan Documents and all rights, benefits, proceeds and obligations
arising therefrom or in connection therewith, has been vested solely in the
Owner or the appropriate designee of the Owner, as the case may be. 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 exclusive benefit of the Owner or the assignee of the Owner, as the
case
may be, as the owner of the related Mortgage Loans. Any portion of the related
Servicing Files retained by the Servicer shall be appropriately identified
in
the Servicer’s computer system to clearly reflect the ownership of the related
Mortgage Loans by the Owner. The Servicer shall release its custody of the
contents of the related Servicing Files only in accordance with written
instructions of the Owner, except when such release is required as incidental
to
the Servicer’s servicing of the Mortgage Loans, such written instructions shall
not be required.
Section
3.03 Books
and Records.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans which shall be clearly marked
to
reflect the ownership of the Mortgage Loans by the Owner
Section
3.04 Transfer
of Mortgage Loans.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe from time to time, the
Servicer shall note transfers of Mortgage Loans. No transfer of a Mortgage
Loan
may be made unless such transfer is in compliance with the terms hereof. For
the
purposes of this Agreement, the Servicer shall be under no obligation to deal
with any person with respect to this Agreement or any Mortgage Loan unless
a
notice of the transfer of such Mortgage Loan has been delivered to the Servicer
in accordance with this Section 3.04. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that the transferee will not be deemed to be an Owner hereunder binding
upon the Servicer unless such transferee shall agree in writing to be bound
by
the terms of this Agreement via an assignment and assumption of this Agreement
reasonably acceptable to the Servicer. The Owner also shall advise the Servicer
in writing of the transfer. Upon receipt of notice of the permitted transfer,
the Servicer shall xxxx its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and shall release the previous Owner from
its
obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section
3.05 Delivery
of Mortgage Loan Documents.
The
Servicer shall forward to the Custodian on behalf of the Owner original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 4.19 promptly
after their execution; provided, however, that the Servicer shall provide the
Custodian on behalf of the Owner with a certified true copy of any such document
submitted for recordation promptly after its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within 180 days of its execution. If delivery is not
completed within 180 days solely due to delays in making such delivery by reason
of the fact that such documents shall not have been returned by the appropriate
recording office, the Servicer shall continue to use its reasonable best efforts
to effect delivery as soon as possible thereafter.
From
time
to time the Servicer may have a need for Mortgage Loan Documents to be released
by the Custodian. If the Servicer shall require any of the Mortgage Loan
Documents, the Servicer shall notify the Custodian in writing of such request
in
the form of the request for release attached hereto as Exhibit G. The Owner
shall cause the Custodian to deliver to the Servicer any requested Mortgage
Loan
Document previously delivered to the Custodian, provided that such documentation
is promptly returned to the Custodian when the Servicer no longer requires
possession of the document, and provided that during the time that any such
documentation is held by the Servicer, such possession is in trust for the
benefit of the Owner.
Section
3.06 Quality
Control Procedures.
The
Servicer must have an internal quality control program capable of evaluating
and
monitoring the overall quality of its servicing activities. The purpose of
the
program is to ensure that the Mortgage Loans are serviced in accordance with
Accepted Servicing Practices; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
Section
3.07 Master
Servicer.
The
Servicer hereby acknowledges that the Owner has designated Xxxxx Fargo Bank,
N.A. as the master servicer of the Mortgage Loans. The Servicer shall remit
any
amounts required to be remitted pursuant to this Agreement, and shall deliver
any reports required to be delivered pursuant to this Agreement, to Xxxxx Fargo
Bank, N.A., unless otherwise notified by the Owner.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Servicer
to Act as Servicer.
The
Servicer, as independent contract servicer, shall service and administer the
Mortgage Loans from and after the related Closing Date in accordance with this
Agreement and shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable and consistent
with the terms of this Agreement. The Servicer shall service the Mortgage loans
and REO Properties in accordance with Accepted Servicing Practices. With respect
to each MERS Mortgage Loan, if
the
Servicer’s membership in MERS is terminated by MERS for any reason, the Servicer
shall, within fifteen (15) days of the effective date of such termination,
deliver to the recording office Assignments of Mortgage from MERS to the
Purchaser or its designee
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Owner; provided,
however, that the Servicer shall not permit any modification with respect to
any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment thereof or of any principal or interest payments, reduce the outstanding
principal amount (except for actual payments of principal), make additional
advances of additional principal or extend the final maturity date on such
Mortgage Loan. Without limiting the generality of the foregoing, the Servicer
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself, and the Owner, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. If reasonably required by the Servicer, the Owner shall
furnish the Servicer with any powers of attorney and other documents necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
Notwithstanding
anything in this Agreement to the contrary, in the event of a Principal
Prepayment in full or in part of a Mortgage Loan, the Servicer may not waive
any
Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i) the Servicer determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the
value of such Prepayment Charge, or (ii) (A) the enforceability thereof is
limited (1) by bankruptcy, insolvency, moratorium, receivership, or other
similar law relating to creditors’ rights generally or (2) due to acceleration
in connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable law. If the
Servicer waives or does not collect all or a portion of a Prepayment Charge
relating to a Principal Prepayment in full due to any action or omission of
the
Servicer, other than as provided above, the Servicer shall deposit the amount
of
such Prepayment Charge (or such portion thereof as had been waived for deposit)
into the Custodial Account for distribution in accordance with the terms of
this
Agreement.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Servicer shall proceed diligently to collect all payments
due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Servicer shall ascertain and estimate annual taxes, assessments, fire and hazard
insurance premiums, mortgage insurance premiums, and all other charges that
may
become a prior lien on the Mortgaged Property and, as provided in the Mortgage,
will become due and payable, 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.
Section
4.03 Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use its reasonable best efforts, consistent with the procedures
that the Servicer would use in servicing loans for its own account, to foreclose
upon or otherwise comparably convert the ownership of such Mortgaged Properties
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 4.01. The Servicer shall use its reasonable best efforts to realize
upon
defaulted Mortgage Loans in such a manner as will maximize the receipt of
principal and interest by the Owner, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward the
restoration of such property in excess of $2,000 unless it shall determine
in
its discretion (i) that such restoration will increase the proceeds of
liquidation of the related Mortgage Loan to Owner after reimbursement to itself
for such expenses, and (ii) that such expenses will be recoverable by the
Servicer through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 4.05. 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 as it shall deem
to
be in the best interest of the Owner. In the event that any payment due under
any Mortgage Loan remains delinquent for a period of 90 days or more, the
Servicer shall commence foreclosure proceedings. The Servicer shall notify
the
Owner or its designee in writing of the commencement of foreclosure proceedings.
In such connection, the Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the related Mortgaged Property, as
contemplated in Section 4.05.
(b) Notwithstanding
the foregoing provisions of this Section 4.03, with respect to any Mortgage
Loan
as to which the Servicer has received actual notice of, or has actual knowledge
of, the presence of any toxic or hazardous substance on the related Mortgaged
Property the Servicer shall not either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action, with respect to,
such
Mortgaged Property if, as a result of any such action, the Owner would be
considered to hold title to, to be a mortgagee-in-possession of, or to be an
owner or operator of such Mortgaged Property within the meaning of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended from time to time, or any comparable law, unless the Servicer has also
previously determined, based on its reasonable judgment and a prudent report
prepared by a Person who regularly conducts environmental audits using customary
industry standards, that:
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(1)
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such
Mortgaged Property is in compliance with applicable environmental
laws or,
if not, that it would be in the best economic interest of the Owner
to
take such actions as are necessary to bring the Mortgaged Property
into
compliance therewith; and
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|
(2)
|
there
are no circumstances present at such Mortgaged Property relating
to the
use, management or disposal of any hazardous substances, hazardous
materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, containment, clean-up or remediation
could be required under any federal, state or local law or regulation,
or
that if any such materials are present for which such action could
be
required, that it would be in the best economic interest of the Owner
to
take such actions with respect to the affected Mortgaged
Property.
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The
cost
of the environmental audit report contemplated by this Section 4.03 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
4.05(vi).
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Owner to take such actions as are necessary to bring any such
Mortgaged Property into compliance with applicable environmental laws, or to
take such action with respect to the containment, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Owner. The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
4.05(vi).
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Servicer for any related
unreimbursed Servicing Advances, pursuant to Section 4.05(iii); second, to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than the
full amount of accrued and unpaid interest due on such Mortgage Loan, the amount
of such recovery will be allocated by the Servicer as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and
owing.
Section
4.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts. The creation of any Custodial Account
shall be evidenced by a Custodial Account Letter Agreement in the form of
Exhibit C.
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than in respect of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.10 and 4.11, other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property or released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(v) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(vi) all
Monthly Advances;
(vii) any
amounts required to be deposited by the Servicer pursuant to Section 4.11 in
connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Servicer’s own funds, without reimbursement
therefor;
(viii) any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Section 4.13;
(ix) any
amounts required to be deposited in the Custodial Account pursuant to Sections
4.14 or 4.20; and
(x) with
respect to each Principal Prepayment, an amount (to be paid by the Servicer
out
of its own funds without reimbursement therefor) which, when added to all
amounts allocable to interest received in connection with such Principal
Prepayment, equals one month’s interest on the amount of principal so prepaid at
the Mortgage Interest Rate, provided, however, that in no event shall the
aggregate of deposits made by the Servicer pursuant to this clause (x) exceed
the aggregate amount of the Servicer’s servicing compensation in the calendar
month in which such deposits are required.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Section 4.01, need not be deposited by the Servicer
in the Custodial Account. Such Custodial Account shall be an Eligible Account.
Any interest or earnings on funds deposited in the Custodial 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
Custodial Account pursuant to Section 4.05(iv). The Servicer shall give notice
to the Owner and its designee of the location of the Custodial Account when
established and prior to any change thereof.
If
the
balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Servicer shall, on or before twelve o’clock noon
Eastern time on such Business Day, withdraw from the Custodial Account any
and
all amounts payable to the Owner and remit such amounts to the Owner or its
designee by wire transfer of immediately available funds.
Section
4.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Owner or its designee in the amounts and in the manner
provided for in Section 4.14;
(ii) to
reimburse itself for Monthly Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) respecting which any such advance was made it being understood that,
in
the case of such reimbursement, the Servicer’s right thereto shall be prior to
the rights of Owner;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the Servicer
from the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of such reimbursement, the Servicer’s right thereto
shall be prior to the rights of the Owner;
(iv) to
pay to
itself pursuant to Section 4.22 as servicing compensation (a) any interest
earned on funds in the Custodial Account (all such interest to be withdrawn
monthly not later than each Distribution Date), and (b) the Servicing Fee from
that portion of any payment or recovery as to interest on a particular Mortgage
Loan;
(v) to
reimburse the Servicer for any Monthly Advance previously made which the
Servicer has determined to be a Nonrecoverable Monthly Advance;
(vi) to
pay,
or to reimburse the Servicer for advances in respect of, expenses incurred
in
connection with any Mortgage Loan pursuant to Section 4.03(b), but only to
the
extent of amounts received in respect of the Mortgage Loans to which such
expense is attributable;
(vii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account pursuant to such subclauses (ii) - (vi) above. The Servicer
shall provide written notification to the Owner or its designee in the form
of
an Officers’ Certificate to the Owner, on or prior to the next succeeding
Distribution Date, upon making any withdrawals from the Custodial Account
pursuant to subclause (v) above.
Section
4.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts, in the form of time deposit or demand accounts. The creation
of
any Escrow Account shall be evidenced by Escrow Account Letter Agreement in
the
form of Exhibit D.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
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 Insurance Proceeds which are
to
be applied to the restoration or repair of any Mortgaged Property. The Servicer
shall make withdrawals therefrom only to effect such payments as are required
under this Agreement, and for such other purposes as shall be as set forth
or in
accordance with Section 4.08. The Servicer shall be entitled to retain any
interest paid on funds deposited in the Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid
to
the Mortgagor and, to the extent required by law, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account is non-interest bearing or that interest paid thereon is insufficient
for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer (i) to effect timely
payments of ground rents, taxes, assessments, water rates, hazard insurance
premiums, and comparable items, (ii) to reimburse the Servicer for any Servicing
Advance made by the Servicer with respect to a related Mortgage Loan but only
from amounts received on the related Mortgage Loan which represent late payments
or collections of Escrow Payments thereunder, (iii) to refund to the Mortgagor
any funds as may be determined to be overages, (iv) for transfer to the
Custodial Account in accordance with the terms of this Agreement, (v) for
application to restoration or repair of the Mortgaged Property, (vi) to pay
to
the Servicer, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account, or (vii) to clear and
terminate the Escrow Account on the termination of this Agreement.
Section
4.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of fire and hazard insurance coverage and shall obtain, from time to
time, all bills for the payment of such charges, including insurance renewal
premiums and shall effect payment thereof prior to the applicable penalty or
termination date and at a time appropriate for securing maximum discounts
allowable, employing for such purpose deposits of the Mortgagor in 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
and applicable law. To the extent that the Mortgage does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor at the time they first become due. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of the Mortgagor’s faithful performance
in the payment of same or the making of the Escrow Payments and shall make
advances from its own funds to effect such payments.
Section
4.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
depository institution from time to time. Such transfer shall be made only
upon
obtaining the consent of the Owner or its designee, which consent shall not
be
unreasonably withheld. In any case, the Custodial Account and Escrow Account
shall be Eligible Accounts.
Section
4.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the amount necessary to fully compensate for any damage or loss to the
improvements which are a part of such property on a replacement cost basis
or
(ii) the sum of the outstanding principal balance of the Mortgage Loan and
the
outstanding principal balance of the related first lien mortgage loan, if
applicable, in each case in an amount not less than such amount as is necessary
to prevent the Mortgagor and/or the Mortgagee from becoming a co-insurer. If
the
Mortgaged Property is in an area identified on a Flood Hazard Boundary Map
or
Flood Insurance Rate Map issued by the Flood Emergency Management Agency as
having special flood hazards and such flood insurance has been made available,
the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the lesser of (i) the outstanding principal balance
of
the Mortgage Loan or (ii) the maximum amount of insurance which is available
under the National Flood Insurance Act of 1968 or the Flood Disaster Protection
Act of 1973, as amended. The Servicer also shall maintain on any REO Property,
fire and hazard insurance with extended coverage in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements
which
are a part of such property and (ii) the outstanding principal balance of the
related Mortgage Loan at the time it became an REO Property plus accrued
interest at the Mortgage Interest Rate and related Servicing Advances, liability
insurance and, to the extent required and available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended,
flood insurance in an amount as provided above. Pursuant to Section 4.04, 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 Mortgaged Property or REO Property, or released to the Mortgagor in
accordance with the Servicer’s normal servicing procedures, shall be deposited
in the Custodial Account, subject to withdrawal pursuant to Section 4.05. Any
cost incurred by the Servicer in maintaining any such insurance shall not,
for
the purpose of calculating distributions to the Owner or its designee, be added
to the unpaid principal balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit. It is understood and agreed
that
no earthquake or other additional insurance need be required by the Servicer
of
the Mortgagor or maintained on property acquired in respect of the Mortgage
Loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional insurance. All such
policies shall be endorsed with standard mortgagee clauses with loss payable
to
the Servicer, or upon request to the Owner or its designee, and shall provide
for at least thirty days prior written notice of any cancellation, reduction
in
the amount of, or material change in, coverage to the Servicer. 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 currently reflect a General Policy Rating of A:VI or better in Best’s
Key Rating Guide and are licensed to do business in the state wherein the
property subject to the policy is located.
Section
4.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all of Mortgaged Properties securing the Mortgage
Loans, then, to the extent such policy provides coverage in an amount equal
to
the amount required pursuant to Section 4.10 and otherwise complies with all
other requirements of Section 4.10, the Servicer shall conclusively be deemed
to
have satisfied its obligations as set forth in Section 4.10, it being understood
and agreed that such policy may contain a deductible clause, in which case
the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy complying with Section
4.10,
and there shall have been one or more losses which would have been covered
by
such policy, deposit in the Custodial Account the amount not otherwise payable
under the blanket policy because of such deductible clause. In connection with
its activities as servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of the Owner, claims under any such blanket policy in
a
timely fashion in accordance with the terms of such policy. Upon request of
the
Owner or its designee, the Servicer shall cause to be delivered to such party
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 days prior written notice to the Owner or its designee.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of FNMA or FHLMC on all officers,
employees or other persons acting in any capacity with regard to the Mortgage
Loans to handle funds, money, documents and papers relating to the Mortgage
Loans. The fidelity bond and errors and omissions insurance shall be in the
form
of the Mortgage Banker’s Blanket Bond and shall protect and insure the Servicer
against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. Such fidelity bond shall also
protect and insure the Servicer against losses in connection with the failure
to
maintain any insurance policies required pursuant to this Agreement and the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 4.12
requiring the fidelity bond and errors and omissions insurance 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 FNMA in the FNMA
Servicing Guide or by FHLMC in the FHLMC Seller’s and Servicer’s Guide. Upon
request of the Owner or its deisgnee, the Servicer shall cause to be delivered
to such party a certified true copy of the fidelity bond and insurance policy
and a statement from the surety and the insurer that such fidelity bond or
insurance policy shall in no event be terminated or materially modified without
thirty days’ prior written notice to the Owner or its designee.
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the 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 a designee of the Owner, or in the event the Servicer
or
such designee 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
an attorney duly licensed to practice law in the state where the REO Property
is
located. Any Person or Persons holding such title other than the Owner shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Owner.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate each REO Property (and may temporarily
rent the same) in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed.
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. The Servicer shall cause each
REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter.
The
Servicer shall make or cause to be made a written report of each such
inspection. Such reports shall be retained in the Servicing File and copies
thereof shall be forwarded by the Servicer to the Owner or its designee. The
Servicer shall use its reasonable best efforts to dispose of the REO Property
as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless the Servicer determines,
and gives appropriate notice to the Owner or its designee, that a longer period
is necessary for the orderly liquidation of such REO Property. If a period
longer than one year is necessary to sell any REO property, (i) the Servicer
shall report monthly to the Owner or its designee as to the progress being
made
in selling such REO Property and (ii) if, with the written consent of the Owner,
a purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Servicer as mortgagee, and a separate servicing
agreement between the Servicer and the Owner shall be entered into with respect
to such purchase money mortgage. Notwithstanding the foregoing, if a REMIC
election is made with respect to the arrangement under which the Mortgage Loans
and the REO Property are held, such REO Property shall be disposed of within
three years or such other period as may be permitted under Section 860G(a)(8)
of
the Code.
With
respect to each REO Property, the Servicer shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall establish
and
maintain a separate REO Account for each REO Property in the form of a
non-interest bearing demand account, unless an Opinion of Counsel is obtained
by
the Servicer to the effect that the classification as a grantor trust or REMIC
for federal income tax purposes of the arrangement under which the Mortgage
Loans and the REO Property is held will not be adversely affected by holding
such funds in another manner. Each REO Account shall be established with the
Servicer or, with the prior consent of the Owner, with a commercial bank, a
mutual savings bank or a savings association. The creation of any REO Account
shall be evidenced by a letter agreement substantially in the form of the
Custodial Account Letter Agreement attached as Exhibit C hereto. An original
of
such letter agreement shall be furnished to any Owner upon request.
The
Servicer shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 4.10 hereof and the fees of any managing agent
acting on behalf of the Servicer. The Servicer shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Determination Date, the Servicer shall withdraw from each
REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
The
Servicer shall furnish to the Owner or its designee on each Distribution Date,
an operating statement for each REO Property covering the operation of each
REO
Property for the previous month. Such operating statement shall be accompanied
by such other information as the Owner or its designee shall reasonably
request.
Each
REO
Disposition shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer deems to be in the best interest of the
Owner only with the prior written consent of the Owner. If as of the date title
to any REO Property was acquired by the Servicer there were outstanding
unreimbursed Servicing Advances with respect to the REO Property, the Servicer,
upon an REO Disposition of such REO Property, shall be entitled to reimbursement
for any related unreimbursed Servicing Advances from proceeds received in
connection with such REO Disposition. The proceeds from the REO Disposition,
net
of any payment to the Servicer as provided above, shall be deposited in the
REO
Account and shall be transferred to the Custodial Account on the Determination
Date in the month following receipt thereof for distribution on the succeeding
Distribution Date in accordance with Section 4.14.
Section
4.14 Distributions.
On
each
Distribution Date, the Servicer shall distribute to the Owner or its designee
all amounts credited to the Custodial Account as of the close of business on
the
preceding Determination Date, net of charges against or withdrawals from the
Custodial Account pursuant to Section 4.05; plus (ii) all Monthly Advances,
if
any, which the Servicer is obligated to distribute pursuant to Section 4.21,
minus (iii) any amounts attributable to Principal Prepayments received after
the
last day of the Calendar month immediately preceding the related Distribution
Date and minus (iv) any amounts attributable to Monthly Prepayments collected
but due on a Due Date or Dates subsequent to the preceding Determination
Date.
All
distributions made to the Owner or its designee on each Distribution Date shall
be based on the Mortgage Loans owned and held by the Owner, and shall be made
by
wire transfer of immediately available funds to the account of the Owner or
its
designee at a bank or other entity having appropriate facilities therefor,
if
the Owner shall have so notified the Servicer, or by check mailed to the address
of the Owner or its designee.
With
respect to any remittance received by the Owner or its designee after the
Distribution Date 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 rate
of
interest as is publicly announced from time to time at its principal office
by
JPMorgan Chase Bank, New York, New York, as its prime lending rate, adjusted
as
of the date of each change, plus one percentage point, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
paid
by the Servicer to the Owner or its designee on the date such late payment
is
made and shall cover the period commencing with the day following such
Distribution Day and ending with the Business Day on which such payment is
made,
both inclusive. Such interest shall be remitted along with such late payment.
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
Servicer.
Section
4.15 Remittance
Reports.
No
later
than the fifth Business Day of each month, the Servicer shall furnish to the
Owner or its designee an electronic file in a mutually agreeable format
containing the monthly data set forth in Exhibit H and for defaulted loans,
the
additional data set forth in Exhibit I, and for realized losses, the information
in the form of Exhibit J, or such other data as mutually agreed upon by the
parties, and all supporting documentation for such information or any other
related information that the Owner or its designee or a master servicer
reasonably requests.
Section
4.16 Statements
to the Owner.
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward
to
the Owner or its designee a statement prepared by the Servicer setting forth
the
status of the Custodial Account as of the close of business on such Distribution
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Custodial Account of each category
of
deposit specified in Section 4.04 and each category of withdrawal specified
in
Section 4.05.
In
addition, not more than sixty days after the end of each calendar year, the
Servicer shall furnish to the Owner and its designee, and to each Person who
was
the Owner at any time during such calendar year, (i) as to the aggregate of
remittances for the applicable portion of such year, an annual statement in
accordance with the requirements of applicable federal income tax law, and
(ii)
listing of the principal balances of the Mortgage Loans outstanding at the
end
of such calendar year.
The
Servicer shall prepare and file any and all tax returns, information statements
or other filings required to be delivered to any governmental taxing authority
or to any Owner pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. 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 as any Owner
may reasonably request from time to time.
Section
4.17 [Reserved].
Section
4.18 [Reserved].
Section
4.19 Assumption
Agreements.
The
Servicer shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause applicable thereto; provided, however, that the Servicer shall not
exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall enter into an assumption agreement with
the person to whom the Mortgaged Property has been conveyed or is proposed
to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Where an assumption is allowed pursuant to this Section 4.19,
the Servicer, is authorized to enter into a substitution of liability agreement
with the person to whom the Mortgaged Property has been conveyed or is proposed
to be conveyed pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the related Mortgage Note. Any such substitution of liability agreement shall
be
in lieu of an assumption agreement.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures that it customarily
employs in servicing and administering mortgage loans for its own account and
in
accordance with all applicable federal, state and local laws. With respect
to an
assumption or substitution of liability, Mortgage Interest Rate, the amount
of
the Monthly Payment, and the final maturity date of such Mortgage Note may
not
be changed. The Servicer shall notify the Owner or its designee that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner or its designee the original of any such substitution
of
liability or assumption agreement, which document shall be added to the related
Servicing File and shall, for all purposes, be considered a part of such
Servicing File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for entering
into
an assumption or substitution of liability agreement to the extent not retained
by the Servicer shall be deposited in the Custodial Account pursuant to Section
4.04.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of
a
Mortgage Loan by operation of law or any assumption which the Servicer may
be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 4.19, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
4.20 Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer will immediately notify
the
Custodian and the Owner or its designee with a certification and request for
release by a servicing officer of the Servicer (a “Servicing Officer”), which
certification 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 Custodial Account pursuant to Section 4.04 have been or will
be
so deposited, and a request for delivery to the Servicer of the portion of
the
Mortgage Loan Documents held by the Custodian. Upon receipt of such
certification and request, the Owner or its designee shall promptly release
or
cause the Custodian to promptly release the related Mortgage Loan Documents
to
the Servicer and the Servicer shall prepare and deliver for execution by the
Owner or its designee or at the Owner’s or its designee’s option execute under
the authority of a power of attorney delivered to the Servicer by the Owner
or
its designee any satisfaction or release. No expense incurred in connection
with
any instrument of satisfaction or deed of reconveyance shall be chargeable
to
the Custodial Account.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Owner or its designee may have under the
mortgage instruments, the Servicer, upon written demand, shall remit to the
Owner or its designee the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account. The Servicer shall
maintain the fidelity bond insuring the Servicer against any loss it may sustain
with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, the Owner or its designee shall, upon request of the Servicer and delivery
to the Owner or its designee of a servicing receipt signed by a Servicing
Officer, release or shall cause the release of the requested portion of the
Mortgage Loan Documents held by the Owner or its designee to the Servicer.
Such
servicing receipt shall obligate the Servicer to return the related Mortgage
Loan Documents to the Owner or its designee when the need therefor by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or the related Mortgage Loan Document has been delivered
to an
attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for
the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
the Servicer has delivered to the Owner or its designee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage Loan Document or documents were delivered and the purpose or
purposes of such delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated, the servicing receipt shall
be
released by the Owner or its designee to the Servicer.
Section
4.21 Monthly
Advances by the Servicer.
(a) Not
later
than the close of business on the Business Day preceding each Distribution
Date,
the Servicer shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 4.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, at the Mortgage Interest
Rate net of the Servicing Fee, which were due on a Mortgage Loan and delinquent
at the close of business on the related Determination Date.
(b) The
Servicer’s obligations to make Monthly 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 Remittance Date prior to the Remittance Date
for the remittance of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds or Condemnation Proceeds) with respect to the
Mortgage Loan; provided
that
such obligation shall cease if the Servicer furnishes to the Purchaser an
Officers’ Certificate evidencing the determination by the Servicer in accordance
with Section
6.04
that an advance with respect to such Mortgage Loan would constitute a
Nonrecoverable Advance.
Section
4.22 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall, subject to Section
4.04(x), be entitled to withdraw from the Custodial Account or to retain from
interest payments on the Mortgage Loans the amounts provided for as the
Servicer’s Servicing Fee. Additional servicing compensation in the form of
assumption fees, as provided in Section 4.19, and late payment charges or
otherwise shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided for.
Section
4.23 Notification
of Adjustments.
On
each
Adjustment Date, the Servicer shall make interest rate adjustments for each
Mortgage Loan in compliance with the requirements of the related Mortgage and
Mortgage Note. The Servicer shall execute and deliver the notices required
by
each Mortgage and Mortgage Note regarding interest rate adjustments. The
Servicer also shall provide timely notification to the Owner or its designee
of
all applicable data and information regarding such interest rate adjustments
and
the Servicer’s methods of implementing such interest rate adjustments. Upon the
discovery by the Servicer, the Owner or any master servicer that the Servicer
has failed to adjust a Mortgage Interest Rate or a Monthly Payment pursuant
to
the terms of the related Mortgage Note and Mortgage, the Servicer shall
immediately deposit in the Custodial Account from its own funds the amount
of
any interest loss caused thereby without reimbursement therefor.
Section
4.24 Statement
as to Compliance.
(a) The
Servicer will deliver to the Owner or its designee, not later than March 15th
of
each year (or, in each case, if such day is not a Business Day, the immediately
preceding Business Day) an Officers’ Certificate stating, 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
such
officers’ supervision and (ii) to the best of such officers’ knowledge, based on
such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. Copies of such statement shall be
provided by the Owner to any Person identified as a prospective Owner of the
Mortgage Loans.
Section
4.25 Independent
Public Accountants’ Servicing Report.
Not
later
than March 15th of each year (or, in each case, if such day is not a Business
Day,, the immediately preceding Business Day), 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 (each, an
“Annual Independent Public Accountant’s Report”) to the Owner and to the
depositor in connection with a securitization transaction and master servicer
in
connection with a securitization transaction to the effect that such firm has
examined certain documents and records relating to the Servicer’s servicing of
mortgage loans of the same type as the Mortgage Loans pursuant to servicing
agreements substantially similar to this Agreement, which agreements may include
this Agreement (such statement to have attached thereto a schedule setting
forth
the agreements covered thereby), and that, on the basis of such an examination,
conducted substantially in accordance with the Uniform Single Attestation
Program for Mortgage Bankers, such firm is of the opinion that the Servicer’s
servicing has been conducted in compliance with the agreements examined pursuant
to this Section 4.25, except for (i) such exceptions as such firm shall believe
to be immaterial, and (ii) such other exceptions as shall be set forth in such
statement.
Section
4.26 Back-up
Certification.
(a) On
or
before March 15 of each year (or if not a Business Day, the immediately
preceding Business Day), beginning on March 15, 2005, and with respect to any
calendar year during which an annual report on Form 10-K of any depositor is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, or at any other time upon thirty days written
request, an officer of the Servicer shall, if the Mortgage Loans are being
master serviced by a master servicer in a securitization transaction, execute
and deliver to such master servicer for the benefit of such master servicer
and
its officers, directors and affiliates a certification in the form of Exhibit
E
attached hereto.
(b) The
Servicer shall indemnify and hold harmless the master servicer, the Owner or
its
designee and their officers, directors, agents and affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach by the Servicer or any of its officers, directors, agents or
affiliates of its obligations under Section 4.24, Section 4.25 and/or Section
4.26 or the negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the master servicer, the Owner or its designee,
then the Servicer agrees that it shall contribute to the amount paid or payable
by the master servicer, the Owner or its designee as a result of the losses,
claims, damages or liabilities of the master servicer, the Owner or its designee
in such proportion as is appropriate to reflect the relative fault of the master
servicer, the Owner or its designee on the one hand and the Servicer on the
other in connection with a breach of the Servicer’s obligations under this
Section 4.26 or the Servicer’s negligence, bad faith or willful misconduct in
connection therewith.
Section
4.27 Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC and any
other federal or state banking or insurance regulatory authority that may
exercise authority over the Owner access to the documentation regarding the
Mortgage Loans serviced by the Servicer required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer. In addition, access to the documentation will be provided to the
Owner
and any Person identified to the Servicer by the Owner without charge, upon
reasonable request during normal business hours at the offices of the Servicer.
The Owner shall reimburse the Servicer for any copying costs incurred in
connection with this Section.
Section
4.28 Reports
and Returns to be Filed by the Servicer.
The
Servicer shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
Section
4.29 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contributions” to a REMIC set forth in Section 860G(d) of
the Code) unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section
4.30 Superior
Liens.
With
respect to each second lien Mortgage, the Servicer shall, for the protection
of
the Owner’s interest, file (or cause to be filed) of record a request for notice
of any action by a superior lienholder where permitted by local law and whenever
applicable state law does not require that a junior lienholder be named as
a
party defendant in foreclosure proceedings in order to foreclose such junior
lienholder’s equity of redemption.
If
the
Servicer is notified that any superior lienholder has accelerated or intends
to
accelerate the obligations secured by the superior lien, or has declared or
intends to declare a default under the superior mortgage or the promissory
note
secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the Servicer shall take such actions
as
are reasonably necessary to protect the interests of the Owner, and/or to
preserve the security of the related Mortgage Loan, subject to any requirements
applicable to real estate mortgage investment conduits pursuant to the Internal
Revenue Code. The Servicer shall make a Servicing Advance of the funds necessary
to cure the default or reinstate the superior lien if the Servicer determines
that such Servicing Advance is in the best interests of the Owner. The Servicer
shall not make such a Servicing Advance except to the extent that it determines
that such advance would not be a Nonrecoverable Servicing Advance from
Liquidation Proceeds on the related Mortgage Loan. The Servicer shall thereafter
take such action as is necessary to recover the amount so advanced.
ARTICLE
V
MERGER
OR CONSOLIDATION; INDEMNIFICATION
Section
5.01 Merger
or Consolidation of the Servicer.
(a) The
Servicer will keep in full force and effect its existence, rights and franchises
as a corporation under the laws of the state of its incorporation, 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.
(b) Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger or consolidation to which the Servicer shall be a
party, or any Person succeeding to the business of the Servicer, shall be the
successor of the Servicer hereunder, without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
Section
5.02 Indemnification.
The
Servicer shall indemnify the Owner and any subsequent Owner and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Owner or any subsequent Owner
may sustain in any way related to the failure of the Servicer to perform its
obligations under this Agreement including but not limited to its obligation
to
service and administer the Mortgage Loans in strict compliance with the terms
of
this Agreement or any Reconstitution Agreement entered into pursuant to Article
8.
Section
5.03 Limitation
of Liability.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer shall
be under any liability to the Owner for any action taken or for refraining
from
the taking of any action in good faith in connection with the servicing of
the
Mortgage Loans pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such person
against any breach of warranties or representations made herein, or failure
to
perform its obligations in strict compliance with any standard of care set
forth
in this Agreement, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement. The Servicer and
any 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 duty to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may result in its incurring any expenses
or
liability; provided, however, that the Servicer may, with the consent of the
Owner, 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 legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities for which the
Owner
shall be liable, the Servicer shall be entitled to reimbursement therefor from
the Owner upon written demand except when such expenses, costs and liabilities
are subject to the Servicer’s indemnification under Sections 5.02.
Section
5.04 Servicer
Not to Resign.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner or its designee which Opinion of Counsel shall be in form and substance
acceptable to the Owner. No such resignation shall become effective until the
Owner or its designee shall have assumed the Servicer’s responsibilities and
obligations hereunder.
ARTICLE
VI
DEFAULT
Section
6.01 Events
of Default.
In
case
one or more of the following events of default by the Servicer (each, an “Event
of Default”) shall occur and be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Owner or its designee any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of two Business Days after the date upon which written notice
of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Owner or its designee; or
(ii) 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 which continues unremedied for a period of thirty days (except
that such number of days shall be fifteen in the case of a failure to pay any
premium for any insurance policy required to be maintained under this Agreement)
after the date on which written notice of such failure, requiring the same
to be
remedied, shall have been given to the Servicer by the Owner or its designee;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) 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 property; or
(v) 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; or
(vi) failure
by the Servicer to be in compliance with the “doing business” or licensing laws
of any jurisdiction where a Mortgaged Property is located where such compliance
is necessary for the Servicer’s performance of its obligations under this
Agreement; or
(vii)
the
Servicer ceases to meet the qualifications of either a FNMA or FHLMC servicer,
the Servicer is not eligible to act as servicer or master servicer for mortgage
loans subject to residential mortgage backed securities transactions rated
by
any nationally recognized rating agency or is eligible to act as such only
with
enhanced credit support; or
(viii) the
Servicer attempts to assign its right 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, except for such limited delegations to
outsource vendors that the Servicer utilizes in connection with other mortgage
loans in its servicing portfolio; or
(ix) the
Servicer fails to duly perform, within the required time period, its obligations
under Sections 4.24, 4.25 or 4.26, which failure continues unremedied for a
period of three (3) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
any
party to this Agreement or by any master servicer responsible for master
servicing the Mortgage Loans pursuant to a securitization of such Mortgage
Loans; or
(x) a
Mortgage Loan is a MERS Mortgage Loan and the Servicer’s membership in MERS is
terminated for any reason and (i) the MERS Mortgage Loans are not de-registered
from the MERS System
and (ii)
the related Assignment of Mortgage is not recorded within 15 days following
such
termination;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Owner or its designee, by notice in writing to the Servicer may,
in addition to whatever rights the Owner may have under Section 5.02 hereof
and
at law or equity to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. On or after the receipt by the Servicer
of such written notice, all authority and power of the Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Owner or its designee. Upon written request from the
Owner or its designee, the Servicer shall prepare, execute and deliver, any
and
all documents and other instruments, place in the Owner’s possession or the
Owner’s designee’s possession all Servicing Files relating to the Mortgage
Loans, and do or accomplish all other acts or things necessary or appropriate
to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise, at the Servicer’s sole expense. The Servicer agrees to
cooperate with the Owner and its designee in effecting the termination of the
Servicer’s responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Servicer to its Custodial Account
or
Escrow Account or thereafter received with respect to the Mortgage Loans or
any
related REO Property.
The
Owner
may waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. 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.
ARTICLE
VII
TERMINATION
Section
7.01 Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon
the distribution to the Owner or its designee of the final payment or
liquidation with respect to the last Mortgage Loan (or advances of same by
the
Servicer) or the disposition of all property acquired upon foreclosure or deed
in lieu of foreclosure with respect to the last Mortgage Loan and the remittance
of all funds due hereunder unless terminated with respect to all or a portion
of
the Mortgage Loans on an earlier date by mutual agreement of the Owner and
the
Servicer, or at the option of the Owner pursuant to Section 6.01. Upon written
request from the Owner in connection with any such termination, the Servicer
shall prepare, execute and deliver, any and all documents and other instruments,
place in the Owner’s possession or the Owner’s designee’s possession all
Servicing Files, and do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise, at the Servicer’s sole expense if termination
is pursuant to Section 6.01. Such cost shall be borne by the Owner if the
Servicer is terminated other than pursuant to Section 6.01. The Servicer agrees
to cooperate with the Owner and such successor in effecting the termination
of
the Servicer’s responsibilities and rights hereunder as servicer, including,
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account, REO Account or Escrow Account or thereafter received with
respect to the Mortgage Loans.
Section
7.02 Successor
to the Servicer.
Prior
to
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Section 6.01, 7.01 or 8.01, the Owner shall (i) succeed to and
assume all of the Servicer’s responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer as servicer under this Agreement. In connection with such appointment
and assumption, the Owner may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Servicer’s duties, responsibilities and liabilities
as servicer under this Agreement should be terminated pursuant to the
aforementioned Sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of the Purchaser or such successor. The termination of the Servicer
pursuant to the aforementioned Sections shall not become effective until a
successor shall be appointed pursuant to this Section 7.02 and shall in no
event
relieve the Servicer of the representations and warranties made pursuant to
Section 2.01 and the remedies available to the Purchaser, it being understood
and agreed that the provisions of such Sections shall be applicable to the
Servicer notwithstanding any such resignation or termination of the Servicer,
or
the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Owner an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement provided, however,
that such successor shall not assume, and Servicer shall indemnify such
successor for, any and all liabilities arising out of the Servicer’s failure to
act in accordance with Accepted Servicing Practices and in strict compliance
with the terms of this Agreement. Any termination of the Servicer shall not
affect any claims that the Owner may have against the Servicer arising prior
to
any such termination or resignation or remedies with respect to such
claims.
The
Servicer shall timely deliver to the successor the funds in the Custodial
Account, REO Account and the Escrow Account and the Servicing Files and related
documents and statements held by it hereunder and the Servicer shall account
for
all funds. The Servicer shall execute and deliver such instruments and do such
other things all as may reasonably be required to more fully and definitely
vest
and confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer. The successor and the Servicer
shall make such arrangements as may be mutually agreed upon to reimburse the
Servicer for amounts the Servicer actually expended pursuant to this Agreement
which the successor is entitled to retain hereunder and which would otherwise
have been recovered by the Servicer pursuant to this Agreement but for the
appointment of the successor servicer.
ARTICLE
VIII
RECONSTITUTION
Section
8.01 Reconstitution.
With
respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may
be, entered into by the Servicer agrees:
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(1)
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to
cooperate fully with the Owner and any prospective purchaser of the
Mortgage Loans with respect to all reasonable requests and due diligence
procedures including participating in meetings with rating agencies,
bond
insurers and such other parties as the Owner shall designate and
participating in meetings with prospective purchasers of the Mortgage
Loans or interests therein and providing information reasonably requested
by such purchasers;
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(2)
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to
execute all Reconstitution Agreements, including without limitation,
an
assignment and assumption agreement and an indemnification agreement,
provided that the Owner shall deliver any Reconstitution Agreements
required to be executed by the Servicer at least ten (10) days prior
to
such Whole Loan Transfer or Pass-Through Transfer, and the Servicer
shall
execute any such Reconstitution Agreements which contain provisions
substantially similar to those herein or otherwise reasonably acceptable
to the Owner and the Servicer and which restates the representations
and
warranties contained in Article II as of the date of such Whole Loan
Transfer or Pass-Through (except to the extent any such representation
or
warranty is not accurate on such
date);
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(3)
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to
deliver to the Owner for inclusion in any prospectus or other offering
material such publicly available information regarding the Servicer’s
financial condition and its mortgage loan delinquency, foreclosure
and
loss experience and any additional information requested by the Owner,
and
to deliver to the Owner any similar non public, unaudited financial
information, in which case the Owner shall bear the cost of having
such
information audited by certified public accountants if the Owner
desires
such an audit, or as is otherwise reasonably requested by the Owner
and
which the Servicer is capable of providing without unreasonable effort
or
expense, and to indemnify the Owner and its affiliates for material
misstatements and alleged material misstatement contained in such
information and material omissions and alleged material omissions
from
such information;
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(4)
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to
deliver to the Owner and to any Person designated by the Owner, at
the
Owner’s expense, such statements and audit letters of reputable, certified
public accountants pertaining to information provided by the Servicer
pursuant to clause 3 above as shall be reasonably requested by the
Owner;
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(5)
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to
deliver to the Owner, and to any Person designated by the Owner,
such
legal documents and in-house Opinions of Counsel as are customarily
delivered by originators or servicers, as the case may be, and reasonably
determined by the Owner to be necessary in connection with Whole
Loan
Transfers or Pass-Through Transfers, as the case may be, such in-house
Opinions of Counsel for a Pass-Through Transfer to be in the form
reasonably acceptable to the Owner, it being understood that the
cost of
any opinions of outside special counsel that may be required for
a Whole
Loan Transfer or Pass-Through Transfer, as the case may be, shall
be the
responsibility of the Owner;
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(6)
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to
negotiate and execute one or more subservicing agreements between
the
Servicer and a master servicer which is generally considered to be
a
prudent master servicer in the secondary mortgage market, designated
by
the Owner in its sole discretion and/or one or more custodial and
servicing agreements among the Owner, the Servicer and a third party
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by
the Owner
in its sole discretion, in either case for the purpose of pooling
the
Mortgage Loans with other Mortgage Loans for resale or
securitization;
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(7)
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in
connection with any securitization of any Mortgage Loans, to execute
a
pooling and servicing agreement, which pooling and servicing agreement
may, at the Owner’s direction, contain contractual provisions including,
but not limited to, a 24-day certificate payment delay (54-day total
payment delay), servicer advances of delinquent scheduled payments
of
principal and interest through liquidation (unless deemed non-recoverable)
and prepayment interest shortfalls (to the extent of the monthly
servicing
fee payable thereto), servicing representations and warranties which
in
form and substance conform to the representations and warranties
in this
Agreement and to secondary market standards for securities backed
by
mortgage loans similar to the Mortgage Loans and such provisions
with
regard to servicing responsibilities, investor reporting, segregation
and
deposit of principal and interest payments, custody of the Mortgage
Loans,
and other covenants as are required by the Owner and one or more
nationally recognized rating agencies for “AAA” rated mortgage
pass-through transactions which are “mortgage related securities” for the
purposes of the Secondary Mortgage Market Enhancement Act of 1984,
unless
otherwise mutually agreed. If the Owner deems it advisable at any
time to
pool the Mortgage Loans with other mortgage loans for the purpose
of
resale or securitization, the Servicer agrees to execute one or more
subservicing agreements between itself (as servicer) and a master
servicer
designated by the Owner at its sole discretion, and/or one or more
servicing agreements among the Servicer, the Owner and a trustee
designated by the Owner at its sole discretion, such agreements in
each
case incorporating terms and provisions substantially identical to
those
described in the immediately preceding paragraph;
and
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(8)
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with
respect to each Whole Loan Transfer or Pass-Through Transfer, as
the case
may be, effected by the Owner, the Owner (i) shall reimburse Servicer
for
all reasonable out-of-pocket third party costs and expenses related
thereto and (ii) shall pay Servicer a reasonable amount representing
time
and effort expended by Servicer related thereto (which amount shall
be
reasonably agreed upon by Servicer and Owner prior to the expenditure
of
such time and effort); provided, however, that for each Whole Loan
Transfer and/or Pass-Through Transfer, the sum of such amounts described
in subsections (i) and (ii) above shall in no event exceed $5,000.
For
purposes of this paragraph, all Whole Loan Transfers and/or Pass-Through
Transfers made to the same entity within the same accounting cycle
shall
be considered one Whole Loan Transfer or Pass-Through
Transfer.
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All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer or
Pass-Through Transfer shall be subject to this Agreement and shall continue
to
be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.01 Amendment.
This
Agreement may be amended from time to time by the Owner and the Servicer by
written agreement signed by the Owner and the Servicer.
Section
9.02 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the Owner’s
expense upon direction of the Owner, but only when such direction is accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Owner or is necessary for the
administration or servicing of the Mortgage Loans.
Section
9.03 Duration
of Agreement.
This
Agreement shall continue in existence and effect until terminated as herein
provided.
Section
9.04 Governing
Law.
The
Agreement shall be construed in accordance with the laws of the State of New
York (without regard to conflicts of laws principles other than 5-1401 of the
general obligations law), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with the laws of the State
of New York, except to the extent preempted by Federal law.
Section
9.05 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
9.06 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, to (a) in the case of the Servicer, 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxx, or such other
address as may hereafter be furnished to the Owner in writing by the Servicer
and (b) in the case of the Owner, 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Xx. Xxxxx Xxxxxxxxx or such other address as may
hereafter be furnished to the Servicer in writing by the Owner.
Section
9.07 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement.
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
9.08 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Servicer shall be
rendered as an independent contractor and not as agent for the
Owner.
Section
9.09 Execution;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 5.04, this Agreement shall inure
to
the benefit of and be binding upon the Owner and the Servicer and their
respective successors and assigns.
Section
9.10 No
Transfer of Servicing.
The
Servicer acknowledges that the Owner has acted in reliance upon the Servicer’s
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the
continuance thereof. Without in any way limiting the generality of this Section,
the Servicer shall not either assign this Agreement or the servicing hereunder
or delegate its rights or duties hereunder, or sell or otherwise dispose of
all
or substantially all of its property or assets, without the prior written
approval of the Owner, which consent will not be unreasonably
withheld.
Section
9.11 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 assigns of the Servicer
and the Owner. The Owner may assign this Agreement to any Person to whom any
Mortgage Loan is transferred whether pursuant to a sale or financing and to
any
Person to whom the servicing or master servicing of any Mortgage Loan is sold
or
transferred. Upon any such assignment, the Person to whom such assignment is
made shall succeed to all rights and obligations of the Owner under this
Agreement to the extent of the related Mortgage Loan or Mortgage Loans and
this
Agreement, to the extent of the related Mortgage Loan or Loans, shall be deemed
to be a separate and distinct Agreement between the Servicer and such Owner,
and
a separate and distinct Agreement between the Servicer and each other Owner
to
the extent of the other related Mortgage Loan or Loans. In the event that this
Agreement is assigned to any Person to whom the servicing or master servicing
of
any Mortgage Loan is sold or transferred, the rights and benefits under this
agreement which inure to the Owner shall inure to the benefit of both the Person
to whom such Mortgage Loan is transferred and the Person to whom the servicing
or master servicing of the Mortgage Loan has been transferred. This Agreement
shall not be assigned, pledged or hypothecated by the Servicer to a third party
without the consent of the Owner.
Section
9.12 Non-solicitation.
From
and
after the date of the related Closing Date, the Servicer covenants and agrees
that it will not take any action or facilitate or cause any action to be taken
by any of its agents or affiliates, or by any independent contractors on the
Servicer’s behalf, to personally, by telephone or mail, solicit the Mortgagor
under any Mortgage Loan to refinance such Mortgage Loan, in whole or in part
or
provide information to any other entity to solicit the refinancing of any
Mortgage Loan, in whole or in part, without the prior written consent of the
Owner. Notwithstanding the foregoing, it is understood and agreed that
promotions (including for the refinancing of mortgage loans) undertaken by
the
Servicer or any affiliates of the Servicer which are directed to the general
public at large, or segments thereof, provided that no segment shall consist
primarily of the Mortgage Loans, including, without limitation, Mortgagor
monthly account statements and messages on the Servicer’s voice response unit,
mass mailing advertisements based on commercially acquired mailing lists or
the
Servicer’s entire servicing portfolio, and newspaper, radio and television
advertisements shall not constitute solicitation under this Section 9.12. This
Section 9.12 shall not be deemed to preclude the Servicer or any of its
affiliates from soliciting any Mortgagor for any other financial products or
services.
Section
9.13 Financial
Statements.
The
Servicer understands that in connection with the Owner’s marketing of the
Mortgage Loans, the Owner shall make available to prospective purchasers the
Servicer’s financial statements for the most recently completed three fiscal
years respecting which such statements are available. The Servicer also shall
make available any comparable interim statements to the extent any such
statements have been prepared by the Servicer (and are available upon request
to
members or stockholders of the Servicer or the public at large). The Servicer,
if it has not already done so, agrees to furnish promptly to the Owner copies
of
the statements specified above. The Servicer also shall make available
information on its servicing performance with respect to mortgage loans serviced
for others, including delinquency ratios.
The
Servicer also agrees to allow access to knowledgeable financial, accounting,
origination and servicing officers of the Servicer for the purpose of answering
questions asked by any prospective purchaser regarding recent developments
affecting the Servicer, its or servicing practices or the financial statements
of the Servicer.
Section
9.14 Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced.
Section
9.15 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
9.16 Reproduction
of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
9.17 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by law, each
party agrees to keep all non-public information regarding the other party
strictly confidential, and to use all such information solely in order to
effectuate the purpose of this Agreement.
Section
9.18 Entire
Agreement.
Each
of
the Servicer and the Owner acknowledge that no representations, agreements
or
promises were made to it by the other party or any of its employees other than
those representations, agreements or promises specifically contained herein.
This Agreement sets forth the entire understanding between the parties hereto
and shall be binding upon all successors of both parties.
Section
9.19 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.
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.
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CITIGROUP
GLOBAL MARKETS REALTY CORP., as Owner
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| By: | /s/ [Authorized Signatory] | |
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Name:
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Title:
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GMAC
MORTGAGE CORPORATION, as Servicer
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| By: | /s/ [Authorized Signatory] | |
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Name:
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Title:
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EXHIBIT
A
MORTGAGE
LOANS
EXHIBIT
B
FORM
OF
SERVICER’S OFFICER’S CERTIFICATE
I,
________________________, hereby certify that I am the duly elected
______________ of GMAC Mortgage Corporation, a Pennsylvania corporation (the
“Servicer”), and further certify, on behalf of the Servicer as
follows:
a. Attached
hereto as Attachment I are a true and correct copy of the Certificate of
Incorporation and by-laws of the Servicer as are in full force and effect on
the
date hereof.
b. No
proceedings looking toward merger, liquidation, dissolution or bankruptcy of
the
Servicer are pending or contemplated.
c. Each
person who, as an officer or attorney-in-fact of the Servicer, signed (a) the
Servicing Agreement (the “Servicing Agreement”), dated as of October 1, 2004 by
and between the Servicer and Citigroup Global Markets Realty Corp. (the
“Owner”); and (b) any other document delivered prior hereto or on the date
hereof in connection with the Servicing Agreement, at the respective times
of
such signing and delivery, and is duly elected or appointed, qualified and
acting as such officer or attorney-in-fact, and the signatures of such persons
appearing on such documents are their genuine signatures.
d. Attached
hereto as Attachment II is a true and correct copy of the resolutions duly
adopted by the board of directors of the Servicer on ____________, 200_ (the
“Resolutions”) with respect to the authorization and approval of the servicing
of mortgage loans pursuant to the Servicing Agreement; said Resolutions have
not
been amended, modified, annulled or revoked and are in full force and effect
on
the date hereof.
e. Attached
hereto as Attachment III is a Certificate of Good Standing of the Servicer
dated
_____, 200_. No event has occurred since _______, 200_ which has affected the
good standing of the Servicer under the laws of the State of
___________.
f. All
of
the representations and warranties of the Servicer contained in Subsection
2.01
of the Servicing Agreement were true and correct in all material respects as
of
the date of the Servicing Agreement and are true and correct in all material
respects as of the date hereof.
g. The
Servicer has performed all of its duties and has satisfied all the material
conditions on its part to be performed or satisfied prior to the related Closing
Date pursuant to the Servicing Agreement.
All
capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Servicing Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
Dated:
[Seal]
|
GMAC
MORTGAGE CORPORATION
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
:
I,
_______________________, Secretary of the Servicer, hereby certify that
_________________________ is the duly elected, qualified and acting Vice
President of the Servicer and that the signature appearing above is
genuine.
IN
WITNESS WHEREOF, I have hereunto signed my name.
Dated:
[Seal]
|
GMAC
MORTGAGE CORPORATION
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
[Assistant] Secretary | |
EXHIBIT
C
CUSTODIAL
ACCOUNT LETTER AGREEMENT
____________
__, 200_
To:
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of October 1, 2004, we hereby
authorize and request you to establish an account, as a Custodial Account,
to be
designated as “GMAC Mortgage Corporation in trust for the Owner, Fixed and
Adjustable Rate Mortgage Loans.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse any deposit
which would result in violation of the requirement that the account be fully
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:
|
||
|
Date:
|
||
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 full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
[Depository]
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
D
ESCROW
ACCOUNT LETTER AGREEMENT
,
200_
To: (the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of October 1, 2004, we hereby
authorize and request you to establish an account, as an Escrow Account, to
be
designated as “[Servicer] in trust for the Purchaser and various Mortgagors,
Fixed and Adjustable Rate Mortgage Loans.” All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully 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:
|
||
|
Date:
|
||
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 full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
Depository
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
E
FORM
OF
BACK-UP CERTIFICATION
I,
[identify certifying individual], certify to the [Owner], [Mortgage Loan Seller]
[Depositor], [Trustee], [Securities Administrator] and [Master Servicer]
that:
(i) Based
on
my knowledge, the information in the Statement as to Compliance, the Annual
Independent Public Accountant’s Servicing Report and all servicing reports,
officer’s certificates and other information relating to the servicing of the
Mortgage Loans does not contain any untrue statement of a material fact or
omit
to state a material fact necessary to make the statements made, in light of
the
circumstances under which such statements were made, not misleading as of the
date of the Statement as to Compliance;
(ii) The
servicing information required to be provided by the Servicer under this
Servicing Agreement has been provided to the Master Servicer;
(iii) I
am
responsible for reviewing the activities performed by the Servicer under the
Agreement and based upon the review required by the Agreement, and except as
disclosed in the Statement as to Compliance or the Annual Independent Public
Accountant’s Servicing Report and all servicing reports, officer’s certificates
and other information relating to the servicing of the Mortgage Loans submitted
to the Master Servicer, the Servicer has as of the date of this certification
fulfilled its obligations under the Agreement; and
(iv) I
have
has disclosed to the Master Servicer all significant deficiencies relating
to
the Servicer’s compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the Servicing
Agreement.
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
|
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
F
ACKNOWLEDGMENT
AGREEMENT
On
this
____ day of ____________, 2004, Citigroup Global Markets Realty Corp. (the
“Owner”) as the Owner under the Servicing Agreement dated as of October 1, 2004,
(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. 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 ___________________, and the Servicing Fee Rate shall be ___%
per
annum.
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.
|
CITIGROUP
GLOBAL MARKETS
REALTY
CORP.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
|
GMAC
MORTGAGE CORPORATION
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
G
REQUEST
FOR RELEASE
To:
[Addressee]
Re: Servicing
Agreement, dated as of October 1, 2004, between Citigroup Global Markets Realty
Corp. as the Owner and GMAC Mortgage Corporation as the Servicer
In
connection with the administration of the Mortgage Loans held by you as the
Custodian on behalf of the Owner, we request the release, and acknowledge
receipt, of the (Custodial File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated.
Documents
to be sent to Name, Address and Phone Number
Mortgagor’s
Name Address & Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents
(check
one)
_____
1. Mortgage
Loan Paid in Full. (The Authorized Servicer hereby certifies that all amounts
received in connection therewith have been credited to the account of the
Owner).
_____
2. Mortgage
Loan Liquidated By _________________________ (The Authorized Servicer hereby
certifies that all proceed of foreclosure, insurance, condemnation or other
liquidation have been finally received and credited to the account of the
Owner).
_____
3. Mortgage
Loan in Foreclosure
_____
4. Other
(explain)
If
box 1
or 2 above is checked, and if all or part of the Custodial File was previously
released to us, please release to us our previous request and receipt on file
with you, as well as any additional documents in your possession relating to
the
specified Mortgage Loan.
If
box 3
or 4 above is checked, upon our return of all of the above documents to you
as
the Custodian on behalf of the Owner, please acknowledge your receipt by signing
in the space indicated below, and returning this form.
|
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
| Date: | ||
Acknowledgment
of Documents returned to the Custodian:
|
|
||
| |
|
|
| By: | ||
|
Name:
|
||
|
Title:
|
||
| Date: | ||
EXHIBIT
H
Exhibit
1: Standard
File Layout - Scheduled/Scheduled
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
|||
|
LOAN_NBR
|
Loan
Number assigned by investor
|
Text
up to 10 digits
|
||||
|
SERVICER
LOAN_NBR
|
Servicer
Loan Number
|
Text
up to 10 digits
|
||||
|
BORROWER_NAME
|
Mortgagor
name assigned to Note
|
Max
length of 30
|
||||
|
SCHED_PMT_AMT
|
P&I
constant
|
2
|
No
commas(,) or dollar signs
|
|||
|
NOTE_INT_RATE
|
Gross
Interest Rate
|
4
|
Max
length of 6
|
|||
|
NET_RATE
|
Gross
Interest Rate less the Service Fee
|
4
|
Max
length of 6
|
|||
|
SERV_FEE_RATE
|
Service
Fee Rate
|
4
|
Max
length of 6
|
|||
|
NEW_PAY_AMT
|
ARM
loan’s forecasted P&I constant
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
NEW_LOAN_RATE
|
ARM
loan’s forecasted Gross Interest Rate
|
4
|
Max
length of 6
|
|||
|
ARM_INDEX_RATE
|
ARM
loan’s index Rate used
|
4
|
Max
length of 6
|
|||
|
ACTL_BEG_BAL
|
Beginning
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
ACTL_END_BAL
|
Ending
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
NEXT_DUE_DATE
|
Borrower’s
next due date
|
MM/DD/YYYY
|
||||
|
CURT_AMT_1
|
Curtailment
Amount
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
CURT_DATE_1
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
||||
|
CURT_ADJ_
AMT_1
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
CURT_AMT_2
|
Curtailment
Amount 2
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
CURT_DATE_2
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
||||
|
CURT_ADJ_
AMT2
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
CURT_AMT_3
|
Curtailment
Amount 3
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
CURT_DATE_3
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
||||
|
CURT_ADJ_AMT3
|
Curtailment
Interest, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
SCHED_BEG_BAL
|
Beginning
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
SCHED_END_BAL
|
Ending
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
SCHED_PRIN_AMT
|
Scheduled
Principal portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
SCHED_NET_INT
|
Scheduled
Net Interest (less Service Fee)
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
LIQ_AMT
|
Liquidation
Principal Amt to bring balance to zero
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
PIF_DATE
|
Liquidation
Date
|
MM/DD/YYYY
|
||||
|
ACTION_CODE
|
Either
60 for liquidation or 65 for Repurchase
|
Max
length of 2
|
||||
|
PRIN_ADJ_AMT
|
Principal
Adjustments made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
INT_ADJ_AMT
|
Interest
Adjustment made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
PREPAYMENT
|
Prepayment
penalty amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
SOILDER_SAILOR
ADJ
|
Soldier
and Sailor Adjustment amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
NON
ADV LOAN AMT
|
Non
Recoverable Loan Amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
EXHIBIT
I
Exhibit: Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|||
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
||||
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
||||
|
CLIENT_NBR
|
Servicer
Client Number
|
|||||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
||||
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
|||||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
|||||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
||||
|
PROP_STATE
|
The
state where the property located.
|
|
||||
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
||||
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower’s next payment is due to the servicer at the end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
||||
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
||||
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
||||
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|||||
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
||||
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
||||
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
|||||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
||||
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
||||
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
||||
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
||||
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
||||
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
||||
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
||||
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
||||
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
||||
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
||||
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
||||
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
||||
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
||||
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
||||
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
||||
|
CURR_PROP_VAL
|
The
current “as is” value of the property based on brokers price opinion or
appraisal.
|
2
|
|
|||
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker’s price opinion or appraisal.
|
2
|
|
|||
|
If
applicable:
|
|
|||||
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
|||||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
|||||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
||||
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
||||
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
||||
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
||||
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
||||
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
||||
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
||||
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
||||
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
||||
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|||
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
||||
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
•
ASUM- Approved
Assumption
•
BAP- Borrower
Assistance Program
•
CO- Charge
Off
•
DIL-
Deed-in-Lieu
•
FFA-
Formal
Forbearance Agreement
•
MOD- Loan
Modification
•
PRE- Pre-Sale
•
SS-
Short
Sale
•
MISC- Anything
else approved by the PMI or Pool Insurer
NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
• Mortgagor
• Tenant
• Unknown
• Vacant
The
Property
Condition
field
should show the last reported condition of the property as follows:
• Damaged
• Excellent
• Fair
• Gone
• Good
• Poor
• Special
Hazard
• Unknown
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
|
005
|
FNMA-Marital
difficulties
|
|
|
006
|
FNMA-Curtailment
of income
|
|
|
007
|
FNMA-Excessive
Obligation
|
|
|
008
|
FNMA-Abandonment
of property
|
|
|
009
|
FNMA-Distant
employee transfer
|
|
|
011
|
FNMA-Property
problem
|
|
|
012
|
FNMA-Inability
to sell property
|
|
|
013
|
FNMA-Inability
to rent property
|
|
|
014
|
FNMA-Military
Service
|
|
|
015
|
FNMA-Other
|
|
|
016
|
FNMA-Unemployment
|
|
|
017
|
FNMA-Business
failure
|
|
|
019
|
FNMA-Casualty
loss
|
|
|
022
|
FNMA-Energy
environment costs
|
|
|
023
|
FNMA-Servicing
problems
|
|
|
026
|
FNMA-Payment
adjustment
|
|
|
027
|
FNMA-Payment
dispute
|
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
|
030
|
FNMA-Fraud
|
|
|
031
|
FNMA-Unable
to contact borrower
|
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
|
09
|
Forbearance
|
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
|
24
|
Government
Seizure
|
|
|
26
|
Refinance
|
|
|
27
|
Assumption
|
|
|
28
|
Modification
|
|
|
29
|
Charge-Off
|
|
|
30
|
Third
Party Sale
|
|
|
31
|
Probate
|
|
|
32
|
Military
Indulgence
|
|
|
43
|
Foreclosure
Started
|
|
|
44
|
Deed-in-Lieu
Started
|
|
|
49
|
Assignment
Completed
|
|
|
61
|
Second
Lien Considerations
|
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
|
63
|
Veteran’s
Affairs-Refund
|
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
|
65
|
Chapter
7 Bankruptcy
|
|
|
66
|
Chapter
11 Bankruptcy
|
|
|
67
|
Chapter
13 Bankruptcy
|
EXHIBIT
J
Exhibit: Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
THE
NUMBERS ON THE FORM CORRESPOND WITH THE NUMBERS LISTED BELOW.
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
|
4-12.
|
Complete
as applicable. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, bills, canceled checks, etc., to
document
the expense. Entries not properly documented will not be reimbursed
to the
Servicer.
|
|
13.
|
The
total of lines 1 through 12.
|
Credits:
|
14-21. |
|
Complete
as applicable. All line entries must be supported by copies of
the
appropriate claims forms, EOBs, HUD-1 and/or other proceeds verification,
statements, payment checks, etc. to document the credit. If the
Mortgage
Loan is subject to a Bankruptcy Deficiency, the difference between
the
Unpaid Principal Balance of the Note prior to the Bankruptcy Deficiency
and the Unpaid Principal Balance as reduced by the Bankruptcy Deficiency
should be input on line
20.
|
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
|
23.
|
The
total derived from subtracting line 22 from 13. If the amount represents
a
realized gain, show the amount in parenthesis (
).
|
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
FARGO
BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________ Date:
_______________
|
Phone:
______________________ Email
Address:_____________________
|
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
|
XXXXX
FARGO BANK, N.A. Loan
No._____________________________
|
|
Borrower’s
Name:________________________________________________________
|
|
Property
Address:________________________________________________________________
|
Liquidation
and Acquisition Expenses:
| (1) | Actual Unpaid Principal Balance of Mortgage Loan | $ ______________ | (1) |
| (2) | Interest accrued at Net Rate | ________________ | (2) |
| (3) | Accrued Servicing Fees | ________________ | (3) |
| (4) | Attorney’s Fees | ________________ | (4) |
| (5) | Taxes | ________________ | (5) |
| (6) | Property Maintenance | ________________ | (6) |
| (7) | MI/Hazard Insurance Premiums | ________________ | (7) |
| (8) | Utility Expenses | ________________ | (8) |
| (9) | Appraisal/BPO | ________________ | (9) |
| (10) | Property Inspections | ________________ | (10) |
| (11) | FC Costs/Other Legal Expenses | ________________ | (11) |
| (12) | Other (itemize) | ________________ | (12) |
|
Cash
for Keys__________________________
|
________________ | ||
|
HOA/Condo
Fees_______________________
|
________________ | ||
|
|
________________ | ||
| ________________________________ | ________________ | ||
|
Total
Expenses
|
$ _______________ | (13) | |
| Credits: | (14) | ||
| (14) | Escrow Balance | $ _______________ | (15) |
| (15) | HIP Refund | ________________ | (16) |
| (16) | Rental Receipts | ________________ | (17) |
| (17) | Hazard Loss Proceeds | ________________ | (18) |
| (18) | Primary Mortgage Insurance Proceeds | ________________ | (19) |
| (19) | Pool Insurance Proceeds | ________________ | (20) |
| (20) | Proceeds from Sale of Acquired Property | ________________ | (21) |
| (21) | Other (itemize) | ________________ | |
| ________________________________ | ________________ | ||
| ________________________________ | ________________ | ||
|
Total
Credits
|
$ _______________ | (22) | |
| Total Realized Loss (or Amount of Gain) | $ _______________ | (23) |
