RECONSTITUTED SERVICING AGREEMENT
This
Reconstituted Servicing Agreement (this “Agreement”) is made April 1, 2007, by
and between GMAC MORTGAGE, LLC (as successor by merger to GMAC Mortgage
Corporation), as servicer (the “Servicer”) and GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as owner (“Owner” or “GCFP”) and is acknowledged by XXXXX FARGO
BANK, N.A., as trustee (the “Trustee”) of the HarborView Mortgage Loan Trust
2007-3 (the “Trust Fund”) created under the Pooling and Servicing Agreement
(defined below).
RECITALS
WHEREAS,
the
Owner has acquired certain mortgage loans listed on Schedule One hereto on
a
servicing released basis and has retained the Servicer to service such Mortgage
Loans (the “Serviced Mortgage Loans”) pursuant to an Amended and Restated Master
Interim Servicing Agreement between the Owner and the Servicer dated as of
January 1, 2006 (the “Servicing Agreement”), a copy of which is annexed hereto
as Exhibit Two;
WHEREAS,
pursuant to Section 12.11 of the Servicing Agreement, the Owner has the right,
without the consent of the Servicer, to assign, in whole or in part, its
interest under the Servicing Agreement with respect to some or all of the
Serviced Mortgage Loans, and designate any person to exercise all or a portion
of its rights under the Servicing Agreement with respect to such Serviced
Mortgage Loans, provided such person executes an assignment and assumption
agreement reasonably acceptable to the Servicer;
WHEREAS,
the
Owner proposes, pursuant to (i) a mortgage loan purchase agreement (the
“Mortgage Loan Purchase Agreement”) dated as of April 1, 2007, between the
Owner, as seller and Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), and (ii) a pooling and servicing agreement (the “Pooling and
Servicing Agreement”) dated as of April 1, 2007, among the Owner, as seller, the
Depositor, the Trustee and Xxxxxxx Fixed Income Services Inc., as credit risk
manager, to transfer the Serviced Mortgage Loans (other than the Servicing
Rights with respect to such Serviced Mortgage Loans) to the Trust Fund as part
of a publicly-issued and privately-placed, rated mortgage securitization. A
copy
of the Pooling and Servicing Agreement is annexed hereto as Exhibit
Three;
WHEREAS,
in
connection with the mortgage securitization, the Owner and the Servicer agree
that (a) the assignment of the Serviced Mortgage Loans (other than the Servicing
Rights with respect to such Serviced Mortgage Loans) under the Servicing
Agreement to be accomplished by the Mortgage Loan Purchase Agreement and the
Pooling and Servicing Agreement each constitutes a valid assignment from the
Owner to the Depositor, and from the Depositor to the Trustee on behalf of
the
Trust Fund of the Owner’s rights and obligations under the Servicing Agreement
to the extent provided therein, (b) on and after such assignments the provisions
of the Servicing Agreement shall continue to apply to the Serviced Mortgage
Loans, but only to the extent provided by this Agreement and (c) this Agreement
shall govern the servicing of the Serviced Mortgage Loans for so long as they
remain subject to the provisions of the Pooling and Servicing
Agreement;
WHEREAS,
pursuant to this Agreement, the Trustee, and any successor trustee, shall be
obligated, among other things, to supervise the servicing of the Serviced
Mortgage Loans and shall have the right to terminate the rights and obligations
of the Servicer under this Agreement upon the occurrence of an Event of Default
(as defined by this Agreement);
NOW,
THEREFORE,
in
consideration of the mutual agreements hereinafter set forth and for other
good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
|
1.
|
Definitions.
“Servicing Rights”: With respect to any Serviced Mortgage Loan, any and
all of the following: (a) the right to terminate the Servicer as
servicer
of such Mortgage Loan, with or without cause, subject to Section
3.03 of
the Pooling and Servicing Agreement; (b) the right to transfer the
Servicing Rights and/or all servicing obligations with respect to
such
Mortgage Loan, subject to Section 3.03 of the Pooling and Servicing
Agreement; (c) the right to the GMACM Subservicing Fee and (d) powers
and
privileges incident to any of the
foregoing.
|
|
2.
|
Servicing;
Incorporation by Reference of Servicing Agreement
Provisions.
The Servicer agrees, with respect to the Serviced Mortgage Loans,
to
perform and observe the duties, responsibilities and obligations
that are
to be performed and observed under the provisions of the Servicing
Agreement, as modified by the provisions of this Agreement and Exhibit
One
hereto, for the benefit of the Trust Fund, and that the provisions
of the
Servicing Agreement, as so modified, are and shall be a part of this
Agreement to the same extent as if set forth herein in
full.
|
|
3.
|
Trust
Fund Cut-off Date.
The parties hereto acknowledge that by operation of Section 5.01
of the
Servicing Agreement (as modified by this Agreement) the remittance
on May
18, 2007, to be made to the Trust Fund is to include all principal
collections due after April 1, 2007 (the “Trust Fund Cut-off Date”), plus
interest thereon at the Mortgage Loan Remittance Rate collected during
the
immediately preceding Due Period, but exclusive of any portion thereof
allocable to a period prior to the Trust Fund Cut-off Date, and taking
into account the adjustments specified in Section 5.01(a) of the
Servicing
Agreement (as modified by this
Agreement).
|
|
4.
|
GMACM
Subservicing Fee.
With respect to each Serviced Mortgage Loan serviced under this Agreement,
the “GMACM Subservicing Fee” shall be an amount equal to (a) one-twelfth
the product of (i) the GMACM Subservicing Fee Rate and (ii) the
outstanding principal balance of such Serviced Mortgage Loan as of
the
first day of the related month. The “GMACM Subservicing Fee Rate” shall be
an annual fee equal to 0.025% of the Assumed Principal Balance of
each
Serviced Mortgage Loan. The GMACM Subservicing Fee shall be payable
monthly from the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds) of each Monthly Payment collected
by
the Servicer (or as otherwise provided under Section 4.05 of the
Servicing
Agreement).
|
|
5.
|
Termination
of Servicer.
The Servicer, including any successor servicer hereunder, shall be
subject
to the supervision of the Trustee, which Trustee shall be obligated
to
enforce the Servicer’s obligation to service the Serviced Mortgage Loans
in accordance with the provisions of this Agreement. The Trustee,
acting
on behalf of the Trust Fund, shall have the same rights (but not
the
obligations) as the Owner to enforce the obligations of the Servicer
under
the Servicing Agreement and unless otherwise specified in Exhibit
One to
this Agreement, references to the “Owner” in the Servicing Agreement shall
include the “Trustee”; provided, however, that any obligation of the Owner
to pay or reimburse the Servicer shall be satisfied from funds available
in the Custodial Account or the Trust Fund. The Trustee shall be
entitled
to terminate the rights and obligations of the Servicer under this
Agreement upon the occurrence of an Event of Default under Section
9.01 of
the Servicing Agreement (as modified by this Agreement). Notwithstanding
anything herein to the contrary, in no event shall the Trustee be
required
to assume any of the obligations of the Owner under the Servicing
Agreement and, in connection with the performance of the Trustee’s duties
hereunder, the parties and other signatories hereto agree that the
Trustee
shall be entitled to all the rights, protections and limitations
of
liability afforded to the Trustee under the Pooling and Servicing
Agreement. A copy of all assessments, attestations, reports and
certifications required to be delivered by the Servicer under this
Agreement and the Servicing Agreement shall be delivered to the Trustee
by
the date(s) specified herein or therein, and where such documents
are
required to be addressed to any party, such addressees shall include
the
Trustee and the Trustee shall be entitled to rely on such
documents.
|
2
|
6.
|
Representations.
The Servicer hereby reaffirms as of the Closing Date (as defined
in the
Pooling and Servicing Agreement) the representations and warranties
made
pursuant to Section 3.01 of the Servicing Agreement for the benefit
of the
Trust Fund.
|
|
7.
|
Notices.
All notices, consents, certificates or reports (collectively “written
information”) required to be delivered hereunder between or among the
parties hereto (including any third party beneficiary thereof) shall
be in
writing, may be in the form of facsimile or electronic transmission,
and
shall be deemed received or given when mailed first-class mail, postage
prepaid, addressed to each other party at its address specified below
or,
if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender
of such
notice. Each party may designate to the other parties in writing,
from
time to time, other addresses to which notices and communications
hereunder shall be sent.
|
All
written information required to be delivered to the Trustee hereunder shall
be
delivered to the Trustee at the following address:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager, HarborView 2007-3
(or,
in
the case of overnight deliveries,
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
3
All
remittances required to be made to the Trustee under this Agreement shall be
on
a scheduled/scheduled basis and made to the following wire account:
Xxxxx
Fargo Bank, N.A.
ABA
#:
000-000-000
Account
Name: SAS CLEARING
Account
Number: 0000000000
For
further credit to: HarborView 2007-3, Account # 00000000
All
written information required to be delivered to the Depositor hereunder shall
be
delivered to the Depositor at the following address:
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Legal Department (HarborView 2007-3)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
All
written information required to be delivered to the Servicer hereunder shall
be
delivered to the Servicer at the following address:
GMAC
Mortgage, LLC
0000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention:
General Servicing Manager (HarborView 2007-3)
Facsimile:
(000) 000-0000
GMAC
Mortgage, LLC
000
Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
General Counsel and Executive Vice President of National Loan Administration
(HarborView 2007-3)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
8.
|
Acknowledgement.
The Servicer hereby acknowledges that the rights of the Owner under
the
Servicing Agreement as modified by this Agreement (other than the
Servicing Rights with respect to the Serviced Mortgage Loans) will
be
assigned to the Depositor under the Mortgage Loan Purchase Agreement
and
by the Depositor to the Trust Fund under the Pooling and Servicing
Agreement and that each such assignment will constitute a valid assignment
of the rights of the Owner under the Servicing Agreement (other than
the
Servicing Rights with respect to the Serviced Mortgage Loans) to
the
Depositor and from the Depositor to the Trust Fund pursuant to Section
11.01 of the Servicing Agreement. The Servicer hereby consents to
such
assignments and acknowledges the Trust Fund’s REMIC
election.
|
4
|
9.
|
Servicing
Rights.
Notwithstanding anything provided herein to the contrary, each of
the
parties hereto agrees and acknowledges that GCFP is the owner of
the
Servicing Rights with respect to the Serviced Mortgage Loans; provided that,
the Servicer shall have the right to receive the GMACM Subservicing
Fee as
provided in this Agreement.
|
|
10.
|
Governing
Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
|
|
11.
|
Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which when so executed shall be deemed to be an original, but all
of which
counterparts shall together constitute but one and the same
instrument.
|
|
12.
|
Limited
Role of the Trustee.
The Trustee shall have no obligations or duties under this Agreement
except as expressly set forth herein. No implied duties on the part
of the
Trustee shall be read into this Agreement. Nothing herein shall be
construed to be an assumption by the Trustee of any duties or obligations
of any party to this Agreement or the Servicing Agreement, the duties
of
the Trustee being solely those set forth in the Pooling and Servicing
Agreement. The Trustee is entering into this Agreement solely in
its
capacity as Trustee under the Pooling and Servicing Agreement and
not
individually, and there shall be no recourse against the Trustee
in its
individual capacity hereunder or for the payment of any obligations
of the
Trust Fund.
|
5
Executed
as of the day and year first above written.
GMAC
MORTGAGE, LLC,
as
Servicer
By:__/s/
Xxxxxx X. Xxxxxxx _____________
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC.,
as
Owner
By:
_/s/
Xxxxxx Xxxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
Acknowledged
By:
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity, but solely as Trustee
under
the
Pooling and Servicing Agreement
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
EXHIBIT
ONE
Modifications
to the Servicing Agreement
|
1.
|
The
following new definitions are added to Article I in the appropriate
alphabetical order to read as
follows:
|
“Acceptable
Successor Servicer”: A Servicer that meets each of the following
characteristics: (i) such Servicer is a Xxxxxxx Mac- or Xxxxxx Xxx-approved
servicer, (ii) such Servicer has been approved by each Rating Agency, as
evidenced by a letter from such Rating Agency delivered to the Trustee that
the
transfer of servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates and (iii) such
Servicer is reasonably acceptable to the Trustee.
“Adverse
REMIC Event”: Any action or omission by the Servicer that would cause the Trust
Fund to (i) endanger the status of any REMIC related thereunder 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 Code Section 860F(a)(2) and the tax
on
prohibited contributions set forth in Section 860G of the Code.
“Assumed
Principal Balance”: As to each Mortgage Loan as of any date of determination,
(i) the principal balance of the Mortgage Loan outstanding as of the Trust
Fund
Cut-off Date after application of payments due on or before the Trust Fund
Cut-off Date, whether or not received, minus (ii) all amounts previously
distributed to the Trustee with respect to the Serviced Mortgage Loan pursuant
to Section 5.01 and representing (a) payments or other recoveries of principal
or (b) advances of scheduled principal payments made pursuant to Section
5.04.
“GMACM
Subservicing Fee”: With respect to each Serviced Mortgage Loan, an amount equal
to (a) one-twelfth the product of (i) the GMACM Subservicing Fee Rate and (ii)
the outstanding principal balance of such Serviced Mortgage Loan as of the
first
day of the related month.
“GMACM
Subservicing Fee Rate”: An annual fee equal to 0.025% of the Assumed Principal
Balance of each Serviced Mortgage Loan.
“Mortgage
Loan Remittance Rate”: As to each Mortgage Loan, the annual rate of interest
required to be remitted hereunder to the Trustee, which shall be equal to the
related Mortgage Interest Rate minus
the
GMACM Subservicing Fee Rate.
“P&I
Advance”: As to any Serviced Mortgage Loan, any advance made by the Servicer of
principal and/or interest on a Serviced Mortgage Loan pursuant to Section
5.04.
“Prepayment
Interest Shortfall”: As to any Remittance Date and any Serviced Mortgage Loan,
(a) if such Serviced Mortgage Loan was the subject of a Full Principal
Prepayment during the related Principal Prepayment Period, the excess of one
month’s interest (adjusted to the Mortgage Loan Remittance Rate) on the Assumed
Principal Balance of such Serviced Mortgage Loan outstanding immediately prior
to such prepayment, over the amount of interest (adjusted to the Mortgage Loan
Remittance Rate) actually paid by the Mortgagor in respect of such Principal
Prepayment Period, and (b) if such Serviced Mortgage Loan was the subject of
a
Partial Principal Prepayment during the related Principal Prepayment Period,
an
amount equal to one month’s interest at the Mortgage Loan Remittance Rate on the
amount of such Partial Principal Prepayment.
Exhibit
One
-1
“Principal
Prepayment Period”: As to any Remittance Date, the calendar month preceding the
calendar month in which such Remittance Date occurs.
“Relief
Act Reduction”: With respect to any Mortgage Loan as to which there has been a
reduction in the amount of the interest collectible thereon as a result of
the
application of the Servicemembers Civil Relief Act, as amended, or any similar
state law, any amount by which interest collectible on such Mortgage Loan for
the Due Date in the related Due Period is less than the interest accrued thereon
for the applicable one-month period at the Mortgage Interest Rate without giving
effect to such reduction.
“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 real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“Servicing
Fee Rate”: shall be an annual fee equal to 0.375% of the Assumed Principal
Balance of each Mortgage Loan.
“Termination
Fee”: The amount that the Owner shall be required to pay to the Servicer as
liquidated damages as a result of the Owner terminating this Agreement without
cause with respect to some or all of the Mortgage Loans pursuant to Section
10.01(ii) hereof.
|
2.
|
The
definition of “Business Day” in Article I is hereby amended by restating
clause (ii) of such definition to read as
follows:
|
(ii)
a
day on which banks and savings and loan institutions in the Commonwealth of
Pennsylvania, the State of Maryland, the State of Minnesota or the State of
New
York are authorized or obligated by law or executive order to be
closed.
|
3.
|
The
definition of “Custodial Account” in Article I shall be amended by
replacing the reference to “Servicer Custodial Account, in trust for
Greenwich Capital Financial Products, Inc., Owner of Whole Loans” with
“Servicer Escrow Account, in trust for Deutsche
Bank National Trust Company,
as trustee of the HarborView Mortgage Loan Trust
2007-3.”
|
|
4.
|
The
definition of “Determination Date” in Article I shall be amended and
restated in it entirety to read as follows:
|
“Determination
Date”: The 15th
day (or
if such 15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day) of
the month of the Remittance Date.
|
5.
|
The
definition of “Due Period” in Article I shall be amended and restated in
it entirety to read as follows:
|
“Due
Period”: With respect to each Remittance Date, the period beginning on the
second day of the month preceding the month of the Remittance Date, and ending
on the first day of the month of the Remittance Date.
|
6.
|
The
definition of “Escrow Account” in Article I shall be amended by replacing
the reference to “Servicer Escrow Account, in trust for Greenwich Capital
Financial Products, Inc., Owner of Whole Loans, and various Mortgagors”
with “Servicer Escrow Account, in trust for Deutsche
Bank National Trust Company,
as trustee of the HarborView Mortgage Loan Trust 2007-3, and various
Mortgagors.”
|
Exhibit
One
-2
|
7.
|
The
definition of “Mortgage Interest Rate” in Article I is hereby amended by
adding the words “net of any Relief Act Reduction” after the word “Note”
and before the comma in the second line of such defined term.
|
|
8.
|
The
definition of “Nonrecoverable Advance” in Article I is hereby amended by
adding the words “or any P&I Advance” immediately after the words
“Servicing Advance” in the first line of such defined
term.
|
|
9.
|
The
definition of “Opinion of Counsel” in Article I is hereby amended by
adding the following proviso immediately after the word “party” and before
the period at the end of such defined
term:
|
;
provided
that any
Opinion of Counsel relating to (a) qualification of the Serviced Mortgage Loans
in a REMIC or (b) compliance with the REMIC Provisions, must be an opinion
of
counsel reasonably acceptable to the Trustee and the Owner, who (i) is in fact
independent of the Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the Servicer of the Serviced
Mortgage Loans or in an affiliate of either and (iii) is not connected with
the Servicer of the Serviced Mortgage Loans as an officer, employee, director
or
person performing similar functions.
|
10.
|
The
definition of “Remittance Date” in Article I of the Agreement is hereby
amended and restated in its entirety to read as
follows:
|
“Remittance
Date”: The 18th
day of
any month, or if such 18th
day is
not a Business Day, the first Business Day immediately preceding such
day.
|
11.
|
The
definition of
“Servicing Fee” is hereby is hereby amended and restated in its entirety
to read as follows:
|
“Servicing
Fee”: an amount equal to (a) one-twelfth the product of (i) the Servicing Fee
Rate and (ii) the outstanding principal balance of the such Serviced Mortgage
Loan as of the first day of the related month.
|
12.
|
Section
2.02 (Maintenance of Servicing Files) is hereby amended and restated
in
its entirety to read as follows:
|
Upon
receipt thereof from or on behalf of the Owner, the Servicer shall maintain
a
Servicing File. Such Servicing File shall be required to include, without
limitation, the related borrower payment history, collection screens and payoff
amounts. The possession of each Servicing File by the Servicer is for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Servicer is in a custodial capacity only. The Servicer
acknowledges that the ownership of each Mortgage Loan, inclusive of the
servicing rights thereto, is vested in the Trustee on behalf of the Trust Fund.
All rights arising out of the Mortgage Loans including 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 for the sole purpose of
servicing the Mortgage Loans and such retention and possession by the Servicer
is in a custodial capacity only in trust for the exclusive benefit of the
Trustee on behalf of the Trust Fund. Any portion of the related Servicing Files
retained by the Servicer shall be appropriately identified in the Servicer’s
computer system to reflect clearly the ownership of the related Mortgage Loans
by the Trustee on behalf of the Trust Fund. 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. The parties agree the Servicer is not
obligated to locate or obtain Mortgage Loan Documents that it did not or will
not receive from or on behalf of the Owner or that it did not receive in the
ordinary course of its servicing of such Mortgage Loans;
provided, however,
that if
the Servicer has actual knowledge that it has not received any necessary
documents, it shall so inform the Owner and the Depositor. The Servicer hereby
agrees that within 5 Business Days after request by the Owner or the Depositor
therefor, it shall provide copies of the Servicing File to the Owner or
Depositor, as applicable, or shall permit inspection thereof at the Servicer's
offices or such other location as shall otherwise be agreed upon by the Owner
or
the Depositor, as applicable. The party requesting such files or examination
shall pay any costs and expenses of the Servicer incurred in connection with
the
provision or examination of any such Servicing File requested pursuant to this
Section.
Exhibit
One
-3
|
13.
|
Section
3.01 (Representations and Warranties of the Servicer) is hereby amended
as
follows:
|
|
(a)
|
by
deleting the word “corporation” in clause (a) and replacing it with the
words “limited liability company”.
|
|
(b)
|
by
deleting the words “articles of incorporation or bylaws” in clause (c) and
replacing it with the words “articles of organization or operating
agreement”.
|
|
14.
|
Section
3.02 (Representations and Warranties of Owner) is hereby deleted
in its
entirety.
|
|
15.
|
Section
4.01 (Servicer to Act as Servicer) is hereby amended
by:
|
|
(a)
|
adding
the following proviso after the word “Practices” and immediately before
the period at the end of the first sentence of the first paragraph
thereof:
|
;
and
provided
further,
no such
modification shall be permitted unless the Servicer shall have provided to
the
Trustee an Opinion of Counsel in writing to the effect that such modification,
waiver or amendment would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement). The costs of obtaining such Opinion of Counsel
shall be a reimbursable expense to the Servicer to be withdrawn from the
Custodial Account pursuant to Section 4.05. Promptly after the execution of
any
modification, of any Serviced Mortgage Loan, the Servicer shall deliver to
the
Trustee original copies of any documents evidencing such assumption,
modification, consolidation or extension;
|
(b)
|
adding
the following additional proviso after the word “Loan” and immediately
before the period at the end of the first sentence of the second
paragraph
thereof:
|
;
and
provided
further,
no such
modification shall be permitted unless the Servicer shall have received written
approval from the Trustee that such modification, waiver or amendment would
not
cause an Adverse REMIC Event. The Trustee may, in its discretion, obtain an
Opinion of Counsel confirming such determination, costs which shall be a
reimbursable expense to the Trustee from the Trust Fund. Promptly after the
execution of any assumption, modification, consolidation or extension of any
Serviced Mortgage Loan, the Servicer shall forward to the Trustee copies of
any
documents evidencing such assumption, modification, consolidation or
extension;
Exhibit
One
-4
|
(c)
|
adding
the following sentences to immediately follow the first sentence
of the
second paragraph:
|
If,
with
the consent of the Trustee, the Servicer permits the deferral of interest or
principal payments on any Mortgage Loan, the Servicer shall include in each
remittance for any month in which any such principal or interest payment has
been deferred an amount equal to the amount that the Servicer would have been
required to advance pursuant to Section 5.04 if such deferred amounts had been
delinquent, and shall be entitled to reimbursement for such advances only to
the
same extent as for P&I Advances made pursuant to Section 5.04. If reasonably
required by the Servicer, the Trustee 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;
and
|
(d)
|
adding
the following paragraph immediately after the second paragraph of
Section
4.01:
|
The
Servicer shall not waive any prepayment penalty with respect to any Serviced
Mortgage Loan except as provided in this paragraph. If the Servicer or its
designee fails to collect the prepayment penalty upon any prepayment of any
Serviced Mortgage Loan which contains a prepayment penalty, the Servicer shall
pay to the Trust Fund at such time by means of a deposit into the Custodial
Account an amount equal to the prepayment penalty which was not collected;
provided, however, the Servicer shall not have any obligation to pay the amount
of any uncollected prepayment penalty under this Section 4.01 if the failure
to
collect such amount is the result of inaccurate or incomplete information
provided by the Owner and which is included as part of the Mortgage Loan
Schedule as Schedule One attached hereto. Notwithstanding the above, the
Servicer or its designee may waive a prepayment penalty without remitting the
amount of the foregone prepayment penalty to the Custodial Account if (i) such
waiver relates to a prepayment which is not a result of a refinancing by the
Servicer or any of its affiliates and (ii) the Serviced Mortgage Loan is in
default or foreseeable default and such waiver (a) is standard and customary
in
servicing similar mortgage loans to the Serviced Mortgage Loan and (b) would,
in
the reasonable judgment of the Servicer, maximize recovery of total proceeds
taking into account the value of such prepayment penalty and the related
Serviced Mortgage Loan or (iii) the collection of the prepayment penalty would
be in violation of applicable laws.
|
(e)
|
by
changing the words “Servicing Fee” in the last sentence of the third
paragraph of Section 4.01 to “GMACM Subservicing
Fee.”
|
|
16.
|
Section
4.03 (Realization Upon Defaulted Mortgage Loans) is hereby amended
by
adding a final paragraph to that section to read as
follows:
|
Notwithstanding
anything in this Servicing Agreement to the contrary, for so long as the Trustee
has not notified the Servicer that the sole holder of the most subordinate
class
of certificates is no longer entitled to the rights described in Exhibit H,
the
Servicer shall follow the procedures set forth in Exhibit H in connection with
any Mortgage Loan that has become 60 or more days delinquent in
payment.
Exhibit
One
-5
|
17.
|
Section
4.04 (Establishment of Custodial Accounts; Deposits in Custodial
Account)
is hereby amended by:
|
|
(a)
|
adding
the following words after the word “Accounts” and before the period at the
end of the first sentence of the first
paragraph:
|
,
entitled “in trust for the Trustee of HarborView Mortgage Loan Trust
2007-3;”
|
(b)
|
adding
the following new sentence immediately after the second sentence
of the
first paragraph:
|
Any
investment of funds in the Custodial Account shall mature not later than the
Business Day next preceding the Remittance Date next following the date of
such
investment (except that (i) any investment in the institution in which the
Custodial Account is maintained may mature on such Remittance Date and
(ii) any other investment may mature on such Remittance Date if the
Servicer shall advance funds on such Remittance Date, to the extent necessary
to
make distributions to the Trust Fund) and shall not be sold or disposed of
prior
to maturity.
|
(c)
|
by
deleting the word “and” after the semi-colon in subclause (vi), replacing
the period with “; and” at the end of clause (vii) and adding new clause
(viii) to read as follows:
|
(viii) any
amounts required to be deposited in the Custodial Account pursuant to Sections
5.04 and 5.05.
|
18.
|
Section
4.05 (Withdrawals from the Custodial Account) is hereby amended as
follows:
|
|
(a)
|
by
adding a new subclause (ii) to read as
follows:
|
(ii) to
reimburse itself for P&I Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related Serviced Mortgage Loan that represents payments of principal and/or
interest respecting which any such P&I Advance was made;
|
(b)
|
by
renumbering existing subclause (ii) as subclause (iv) and
amending and restating clause (iv) in its entirety to read as
follows:
|
(iv) to
reimburse itself first
for
unreimbursed Servicing Advances, second,
for
xxxxxxxxxxxx X&X Advances, and third
for any
unpaid GMACM Subservicing Fees, the Servicer’s right to reimburse itself
pursuant to this subclause (iv) with respect to any Serviced Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and such other amounts as may be collected
by
the Servicer from the Mortgagor or otherwise relating to the Serviced Mortgage
Loan, it being understood that, in the case of any such reimbursement, the
Servicer’s right thereto shall be prior to the rights of the Trust
Fund;
|
(c)
|
by
amending and restating clause (iii) in its entirety to read as
follows:
|
Exhibit
One
-6
(iii) (a)
to
pay to itself as servicing compensation any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date) and (b) to retain any Servicing Fee for the purposes of
compensating itself, to the extent such Servicing Fee has not been paid to
or
retained by the Servicer;
|
(d)
|
by
renumbering existing subclause (iv) (prior to any changes set forth
in
clause (b) above) as subclause (v) and amending and restating clause
(v)
in its entirety to read as follows:
|
(v) to
reimburse itself for unreimbursed Servicing Advances and P&I Advances made
pursuant to Section 5.04 to the extent that such amounts are nonrecoverable
by
the Servicer pursuant to subclause (iv) above;
|
19.
|
Section
4.12 (Fidelity
Bond; Errors and Omissions Insurance) is hereby amended by adding
the
following the words after the last
sentence:
|
The
Company shall provide to the Owner and the Trustee a copy of the policy and
the
Fidelity Bond, or evidence of the same, upon request.
20. Section
4.13 (Title,
Management and Disposition of REO Property) is hereby amended and restated
in
its entirety to read as follows:
Section
4.13 Title,
Management and Disposition of REO Property.
If
title
to a Mortgaged Property is acquired in foreclosure or by deed in lieu of
foreclosure, the deed or certificate of sale shall be taken in the name of
the
Servicer or its nominee, in either case as nominee, for the benefit of the
Trustee on behalf of the Trust Fund on the date of acquisition of title (the
"REO Owner"). In the event the Servicer is not authorized or permitted to hold
title to real property in the state in which the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such
state
by so holding title, the deed or certificate of sale shall be taken in the
name
of such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by the Servicer, at expense of the Trust Fund, from an attorney duly
licensed to practice law in the state where the REO Property is located. The
Person or Persons holding such title other than the Trust Fund shall acknowledge
in writing that such title is being held as nominee for the REO Owner.
The
Servicer shall notify the Trustee in accordance with Accepted Servicing
Procedures of each acquisition of REO Property upon such acquisition, and
thereafter assume the responsibility for marketing such REO Property in
accordance with Accepted Servicing Procedures. Thereafter, the Servicer shall
continue to provide certain administrative services to the Trust Fund relating
to such REO Property as set forth in this Section 4.13. The REO Property must
be
sold within three years following the end of the calendar year of the date
of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Serviced Mortgage Loans and REO Property are held
and (i) the Trustee shall have been supplied by the Servicer with an Opinion
of
Counsel to the effect that the holding by the related trust of such Mortgaged
Property subsequent to such three-year period (and specifying the period beyond
such three-year period for which the Mortgaged Property may be held) will not
result in the imposition of taxes on “prohibited transactions” of the related
trust as defined in Section 860F of the Internal Revenue Code of 1986, as
amended (the “Code”), or cause the related REMIC to fail to qualify as a REMIC,
in which case the related trust may continue to hold such Mortgaged Property
(subject to any conditions contained in such Opinion of Counsel), or (ii) the
Servicer shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable period. If a period longer than three years is
permitted under the foregoing sentence and is necessary to sell any REO
Property, (i) the Servicer shall report monthly to the Trustee as to progress
being made in selling such REO Property and (ii) if, with the written consent
of
the Trustee, a purchase money mortgage is taken in connection with such sale,
such purchase money mortgage shall name the Servicer as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement, but
instead a separate participation agreement between the Servicer and the Trustee
on behalf of the Trust Fund shall be entered into with respect to such purchase
money mortgage.
Exhibit
One
-7
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made, no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of the
Trust Fund or sold in such a manner or pursuant to any terms that would (i)
cause such Mortgaged Property to fail to qualify at any time as “foreclosure
property” within a meaning of Section 860G(a)(8) of the Code, (ii) subject the
Trust Fund to the imposition of any federal or state income taxes on “net income
from foreclosure property” with respect to such Mortgaged Property within the
meaning of Section 860G(c) of the Code, or (iii) cause the sale of such
Mortgaged Property to result in the receipt by the Trust Fund or any income
from
non-permitted assets as described in Section 860F(a) (2)(B) of the Code, unless
the Servicer has agreed to indemnify and hold harmless the Trust Fund with
respect to the imposition of any such taxes.
The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate each REO Property for the REO Owner solely
for the purpose of its prompt disposition and sale, and in the same manner
that
it would be required to manage, conserve, protect and operate foreclosed
property for its own account (subject to the condition described in the second
paragraph of Section 4.02). The Servicer shall attempt to sell the same (and
may
temporarily rent the same) on such terms and conditions as the Servicer deems
to
be in the best interest of the REO Owner.
The
Servicer shall cause to be deposited in the Escrow Account, on a daily basis
upon receipt thereof, all revenues received with respect to the conservation
and
disposition of the related REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of the related
REO Property, including the cost of maintaining any hazard insurance pursuant
to
Section 4.10 hereof and the fees of any managing agent acting on behalf of
the
Servicer. In the event the Servicer chooses to manage the related REO Property,
the Servicer shall be entitled to receive a management fee in an amount equal
to
the greater of $1,500 or 1% of the sales price of the related REO Property
(the
“REO Disposition Fee”). The Servicer shall be entitled to deduct the REO
Disposition Fee directly from the REO Disposition proceeds prior to distribution
of the REO Distribution Proceeds to the Trustee. Any disbursement in excess
of
$5,000 shall be made only with the written approval of the REO Owner. For
purposes of the preceding sentence, any approval given by the Owner shall
constitute approval by the Trustee. On or before each Determination Date, the
Servicer shall withdraw from the Escrow Account and deposit into the Custodial
Account the net income from the REO Property on deposit in the Escrow Account
less any reserves required to be maintained in the Escrow Account from time
to
time to satisfy reasonably anticipated expenses. The Servicer shall furnish
to
the Trustee on each Remittance Date, an operating statement for each REO
Property covering the operation of each REO Property for the previous month
and
the Servicer's efforts in connection with the sale of that REO Property. Such
statement shall be accompanied by such other information as the Trustee shall
reasonably request and which is reasonably available to the Servicer.
Exhibit
One
-8
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 interests of
the
Trust Fund. If upon the acquisition of title to the Mortgaged Property by
foreclosure sale or deed in lieu of foreclosure or otherwise, there remain
outstanding xxxxxxxxxxxx X&X Advances pursuant to Section 5.04 with respect
to the Serviced Mortgage Loan or if, upon liquidation as provided in this
Section 4.13, there remain outstanding any unreimbursed Servicing Advances
with
respect to the Mortgaged Property or the Serviced Mortgage Loan, the Servicer
shall be entitled to reimbursement from the proceeds received in connection
with
the disposition of the Mortgaged Property, and from the Trust Fund if such
proceeds are insufficient, for any related unreimbursed Servicing Advances
or
related xxxxxxxxxxxx X&X Advances pursuant to Section 5.04. On the
Remittance Date immediately following the Principal Prepayment Period in which
REO Disposition Proceeds are received, the net cash proceeds of such REO
Disposition shall be distributed to the Trust Fund. In the event that the
Servicer is billed for expenses related to an REO Property subsequent to the
date on which the net cash proceeds of such REO Disposition are distributed
to
the REO Owner, the Servicer shall pay such expenses and shall thereupon be
entitled to reimburse itself therefor by withdrawing the amount of such expenses
from the Custodial Account.
|
21.
|
Section
5.01 (Remittances) is hereby amended and restated in its entirety
to read
as follows:
|
Section
5.01 Remittances.
(a) On
each
Remittance Date, the Servicer shall remit to the Trustee (i) 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(ii)-(v), plus
(ii) the
aggregate amount of P&I Advances, if any, and payments pursuant to Section
5.04, if any, that the Servicer is obligated to make on such Remittance Date,
plus
(iii)
the aggregate amount of any Prepayment Interest Shortfall that the Servicer
is
required to pay pursuant to Section 5.05 with respect to such Remittance Date,
minus
(iv) any
amounts that represent early receipts of Monthly Payments due on a Due Date
or
Due Dates subsequent to the Due Date occurring in the month of such Remittance
Date (except to the extent that, pursuant to Section 5.04, any funds described
in this clause (iv) are to be remitted to the Trustee in lieu of P&I
Advances by the Servicer out of its own funds), and minus
(v) any
amounts that represent Full Principal Payments received in the month of such
Remittance Date (except to the extent pursuant to Section 5.04, any funds
disbursed in this clause (v) are to be remitted to the Trustee in lieu of
P&I Advances out of the Servicer’s own funds).
(b) Each
remittance pursuant to this Section 5.01 shall be made by wire transfer of
immediately available funds to, or by other means of transmission or transfer
that causes funds to be immediately available in, the account which shall have
been designated by the Trustee.
(c) With
respect to any remittance received by the Trustee after the Business Day on
which such payment was due, the Servicer shall pay to the Trustee interest
on
any such late payment at an annual rate equal to the prime rate, adjusted as
of
the date of each change, plus two percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Custodial Account by the Servicer on the date such late payment
is made and shall cover the period commencing with the day following such
Business Day and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding related Remittance Date.
Exhibit
One
-9
|
22.
|
Section
5.02 (Statements to Owner) is hereby amended in its entirety to read
as
follows:
|
(a) Section
5.02 Statements
to Trustee.
Not
later than the tenth calendar day of each month (or if such calendar day is
not
a Business Day, the immediately preceding Business Day), the Servicer
shall furnish to the Trustee in the form of Exhibit
I
(i) a monthly remittance advice in written or electronic format (or in such
other format mutually agreed to between the Servicer and the Trustee) relating
to the period
ending on the last day of the preceding calendar
month and (ii) all such information required pursuant to clause (i) above on
a
magnetic tape or other similar media reasonably acceptable to the
Trustee.
The
Servicer shall provide the Trustee with such information reasonably available
to
it concerning the Serviced Mortgage Loans as is necessary for the Trustee to
prepare the Trust Fund’s federal income tax return as the Trustee may reasonably
request from time to time.
|
23.
|
A
new Section 5.04 (P&I Advances by the Servicer) is hereby added to the
Servicing Agreement to read as
follows:
|
Section
5.04 P&I
Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Servicer shall from its own funds deposit in the Custodial Account an amount
equal to all Monthly Payments that were due on the related Due Date and that
were delinquent at the close of business on the related Determination Date,
with
the interest adjusted to the respective Mortgage Loan Remittance Rates;
provided,
however, that to the extent there are funds on deposit in the Custodial Account
that are not otherwise required to be distributed to the Trustee on such
Remittance Date, the Servicer may remit such funds in lieu of making advances
of
its own funds; and further provided
that any
such funds held for future distribution and so used shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit
into
the Custodial Account on or before each Remittance Date to the extent that
funds
on deposit in the Custodial Account for the related Remittance Date (determined
without regard to P&I Advances required to be made on such Remittance Date)
shall be less than the aggregate amount required to be distributed to the
Trustee pursuant to Section 5.01 on such related Remittance Date. For purposes
of this Section 5.04, any Monthly Payment or portion thereof deferred pursuant
to Section 4.01 shall be considered delinquent until paid. The Servicer's
obligation to make P&I Advances as to any Mortgage Loan shall continue
through the Remittance Date following acquisition or disposition of title to
the
related Mortgaged Property through foreclosure or by delivery of a deed in
lieu
of foreclosure.
Notwithstanding
the provisions of this Section 5.04, the Servicer shall not be required to
make
any advance of principal and interest if, in the good faith judgment of the
Servicer, such advance of principal and interest will not ultimately be
recoverable from the related Mortgagor, from Liquidation Proceeds or otherwise.
Such determination of non-recoverability shall be evidenced by an Officer’s
Certificate delivered to the Trustee not later than the Business Day preceding
the applicable Remittance Date.
|
24.
|
A
new Section 5.05 (Prepayment Interest Shortfalls) is hereby added
to the
Servicing Agreement to read as
follows:
|
Exhibit
One
-10
Not
later
than the close of business on the Business Day preceding each Remittance Date,
the Servicer shall from its own funds deposit in the Custodial Account an amount
equal to the aggregate Prepayment Interest Shortfall, if any, existing in
respect of the related Principal Prepayment Period. Such deposit shall be made
from the Servicer’s own funds, without reimbursement therefor, up to a maximum
amount of the Servicing Fee Rate for each Mortgage Loan.
|
25.
|
Section
6.03 (Servicing Compensation) is superseded by Section 4 of this
Agreement.
|
|
26.
|
Section
6.04 (Annual Statement as to Compliance; Financial Statements) is
hereby
amended by deleting in its entirety the first paragraph
thereof.
|
|
27.
|
Section
6.05 (Annual Independent Certified Public Accountants Servicing Report)
of
this Agreement shall be
inapplicable.
|
|
28.
|
Section
6.06 (Right to Examine Company Records) is hereby amended and restated
in
its entirety to read as follows:
|
If
the
Trustee provides reasonable prior written notice, it and its accountants,
attorneys, or designees may examine the Servicing Files relating to the Serviced
Mortgage Loans and the REO Properties during normal business hours of the
Servicer at the Trust Fund's expense. The examining party or parties shall
provide to the Servicer a copy of any report generated in connection with any
such examination.
|
29.
|
Section
8.01 (Indemnification; Third Party Claims) is amended as
follows:
|
|
(a)
|
by
replacing the word “Owner” in the first line thereof with the words “Trust
Fund, the Trustee and the Depositor”; by replacing the word “Owner” or
“Owner’s” in the tenth, fourteenth and seventeenth lines thereof with the
word “Trustee”; and
|
|
(b)
|
by
adding the following text at the end of the first paragraph
thereof:
|
The
Servicer shall immediately notify the Trust Fund if a claim is made by a third
party with respect to this Agreement or any Mortgage Loans. The Servicer shall
follow any written instructions received from the Trustee in connection with
such claim. The Servicer shall assume the defense of any such claim as directed
by the Trust Fund and may seek reimbursement from the Custodial Account for
all
amounts advanced by it pursuant to the preceding sentence except when such
third
party claim is in any way related to Servicer’s indemnification pursuant to this
Section 8.01 or the failure of the Servicer to service and administer the
Mortgage Loans in material compliance with this Agreement.
|
30.
|
Section
8.02 (Merger or Consolidation of the Servicer) is hereby amended
by
deleting the word “corporation” in the first paragraph and replacing it
with the words “limited liability
company”.
|
|
31.
|
Section
8.04 (Company Not to Resign) is hereby amended by (i) replacing the
word
“Owner” in the second line thereof with “Owner, as the owner of the
Servicing Rights and the Trustee,”.
|
Exhibit
One
-11
|
32.
|
Section
8.05 (No Transfer of Servicing) is hereby amended
by:
|
|
(a)
|
changing
the words “Owner has” to “the Owner, as owner of the Servicing Rights,
has” in the second line; and
|
|
(b)
|
changing
the word to “Owner” in the eighth line thereof to “the Owner, as owner of
the Servicing Rights”.
|
|
33.
|
Section
8.06 (Indemnification by Owner) shall be
inapplicable.
|
|
34.
|
Section
8.07 (Notice of Settlement and Claims) shall be
inapplicable.
|
|
35.
|
Section
9.01 (Event of Default) is hereby amended
by:
|
|
(a)
|
changing
any reference to “Owner” to
“Trustee;”
|
|
(b)
|
by
adding the words “subject to Subsection 11.07(b),” at the beginning of
clause (a)(ii); and changing the reference to “sixty days” to “thirty
days” in clause (a)(ii);
|
|
(c)
|
by
removing the word “or” at the end of clause (a)(vi), adding the word “or”
after clause (a)(vii) and adding following new clause
(a)(viii):
|
(viii) the
Servicer fails to meet the qualification of either a Xxxxxxx Mac or Xxxxxx
Mae
servicer (to the extent such entities are then operating in a capacity similar
to that in which they operate on the Closing Date).
|
(d)
|
by
deleting the reference to “Owner’s Event of Default” in its
entirety.
|
|
(e)
|
by
amending and restating paragraph (c) of such section to read as
follows:
|
If
an
Event of Default shall occur, then so long as such Event of Default shall not
have been remedied, the Trustee may, by notice in writing to the Servicer,
in
addition to whatever rights the Trustee may have 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 Serviced
Mortgage Loans and the proceeds thereof. 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 successor appointed pursuant to Section 12.01. Upon
written request from the Trustee, the Servicer shall prepare, execute and
deliver, any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Serviced
Mortgage Loans and related documents, or otherwise, at the Servicer's sole
expense. The Servicer shall cooperate with the Trustee and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor for
administration by it of all cash amounts (less any amounts due the Servicer
pursuant to the terms of this Agreement) which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Serviced Mortgage Loans.
Exhibit
One
-12
|
36.
|
Section
9.02 (Waiver of Defaults) is hereby amended by (a) changing the reference
to “Owner” to “Trustee”.
|
|
37.
|
Section
10.01 (Termination) is hereby amended
by:
|
|
(a)
|
by
restating the clause (ii) to read:
|
30
days’
written notice from the Owner, as owner of the Servicing Rights, to the Servicer
and the Trustee, provided such termination is acceptable to the Rating Agencies
and subject to payment by the Seller of the Termination Fee; and
|
(b)
|
by
restating clause (iv) to read:
|
mutual
consent of the Servicer and the Owner, as owner of the Servicing Rights, in
writing, provided such termination is acceptable to the Rating
Agencies;
|
(c)
|
by
deleting the last sentence thereof and replacing it with the following:
|
In
the
event that Owner terminates the Servicer without cause with respect to some
or
all of the Mortgage Loans in accordance with (ii) above, the Owner shall be
required to pay to the Servicer a Termination Fee in the amount of (a) $50.00
for each transfer of Mortgage Loans on any date and (b) $10.00 per Mortgage
Loan
transferred.
|
38.
|
Section
10.02 (Removal of Mortgage Loans from Inclusion Under this Agreement
Upon
a Whole Loan Transfer) shall be
inapplicable.
|
|
39.
|
Section
10.03 (Transfer of Servicing for Defaulted Loans) shall be
inapplicable.
|
|
40.
|
Section
11.01 (Intent of Parties; Reasonableness) is hereby amended by deleting
the last paragraph thereof.
|
|
41.
|
Section
11.03 (Information to Be Provided by the Servicer) is hereby amended
as
follows:
|
|
(a)
|
by
replacing the word “and” between “(c)” and “(g)” in the sixth line of the
first paragraph thereof with a comma and by adding “and (h)” following
“(g)” in such sixth line;
|
|
(b)
|
by
deleting the reference to “(ii)” and replacing it with “(2)” in the sixth
line of the first paragraph
thereof;
|
|
(c)
|
by
replacing the word “notify” with the words “provide prompt notice” after
the word “(i)” in the third line of clause (d)
thereto;
|
|
(d)
|
by
replacing the word “pending against” with the word “involving” in the
fourth line of clause (d) thereof;
|
|
(e)
|
by
adding the words “, any Trustee,” after the word “Owner” in the fourth
line of clause (e) thereto;
|
Exhibit
One
-13
|
(f)
|
by
adding the words “as may be reasonably requested by the Owner, any Trustee
or any Depositor” at the end of clause (h)
thereto.
|
|
42.
|
Section
11.03 (Information to be Provided by the Servicer) shall be amended
as
follows:
|
|
(a)
|
Subsection
(f) thereof shall be inapplicable;
and
|
|
(b)
|
by
adding the words “to the extent the Servicer or such Subservicer has
knowledge” between the word “shall” and the word “provide” in the fifth
line of subsection (g) thereof.
|
|
43.
|
Section
11.04 (Servicer Compliance Statement) is hereby amended as
follows:
|
|
(a)
|
by
replacing the words “The Servicer shall make reasonable best efforts by”
with the words “On or before” at the beginning of the first sentence
thereof;
|
|
(b)
|
by
deleting the words “but in no event later than March 15” from the first
sentence thereof;
|
|
(c)
|
by
replacing the reference to “2007” with “2008” in the second line thereof;
|
|
(d)
|
by
replacing the words “to deliver to the Owner” with the words “the Servicer
shall deliver to the Owner” in the second line thereof;
and
|
|
(e)
|
by
adding the words “, such Trustee” after the word “Owner” in the third line
thereof.
|
|
44.
|
Section
11.05 (Report on Assessment of Compliance an Attestation) is hereby
amended as follows:
|
|
(a)
|
by
deleting the words “Using reasonable best efforts” at the beginning of the
first sentence of clause (a)
thereof;
|
|
(b)
|
by
deleting the words “but in no event later than March 15” from the first
sentence thereof;
|
|
(c)
|
by
replacing the reference to “2007” with “2008” in the first sentence of
clause (a) thereof;
|
|
(d)
|
by
adding the words “, such Trustee” after the references to “Owner” in the
second and sixth line of clause (a)(i) thereto;
|
|
(e)
|
by
deleting the words “a certification substantially in the form of” in
clause (a)(i) thereto;
|
|
(f)
|
by
replacing the reference to “Exhibit F” with “Exhibit G” in clause (a)(i)
thereto;
|
Exhibit
One
-14
|
(g)
|
by
replacing clause (a)(iii) thereto to read as follows:
(iii)(x)
cause each Subservicer and (y) each
Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB (each, a “Participating Entity”) and for
which the
Servicer does not elect to take responsibility for assessing compliance
with the Servicing Criteria in accordance with Regulation AB Telephone
Interpretation 17.06, to deliver to the Owner, any Master Servicer
and any
Depositor an assessment of compliance and accountants’ attestation
as and when provided in paragraphs (a) and (b) of this Section and,
to the
extent required of such Subservicer or such Subcontractor under Item
1123
of Regulation AB, an annual compliance certification as and wehn
required
under Section 11.04; and;
|
|
(h)
|
by
deleting the words “if requested by the Owner, any Trustee or any
Depositor not later than March 15th
of
the calendar year in which such certification is to be delivered” at the
beginning of the sentence clause (a)(iv) thereto;
|
|
(i)
|
by
deleting the words “or Trustee” in the paragraph following clause (a)(iv)
thereto;
|
|
(j)
|
by
deleting the last sentence of the first paragraph and the last sentence
of
the second paragraph of clause (a)(iv);
and
|
|
(k)
|
by
deleting the last sentence of subsection (b)
thereof.
|
|
45.
|
Section
11.06 (Use of Subservicers and Subcontractors) is hereby amended
as
follows:
|
|
(a)
|
by
adding the words “or the Trustee” after the word “Owner” in the first line
of subsection (a) thereof;
|
|
(b)
|
by
replacing the words “(f) and (g)” with the words “(g) and (h)”in the
fourth line of subsection (a) thereof;
|
|
(c)
|
by
inserting the following words after the word “Subcontractor” in subsection
(b)(iv): “for which the Servicer does not elect to take responsibility for
assessing compliance with the Servicing Criteria in accordance with
Regulation AB Telephone Interpretation 17.06”;
and
|
|
(d)
|
by
replacing the last sentence of the last paragraph of subsection (b)
thereof with the following:
|
The
Servicer shall be responsible for obtaining from each Subcontractor for which
the Servicer does not elect to take responsibility for assessing compliance
with
the Servicing Criteria in accordance with Regulation AB Telephone Interpretation
17.06 and delivering to the Trust Fund, the Depositor, the Trustee and the
Master Servicer any assessment of compliance and attestation required to be
delivered by such Subcontractor under Section 11.02, in each case as and when
required to be delivered.
|
46.
|
Section
11.07 (Indemnification; Remedies) is hereby amended as
follows:
|
|
(a)
|
by
adding
at the beginning of the first clause (b)(1) “Notwithstanding any other
provision of the Servicing Agreement or this Agreement to the contrary,
including without limitation Section
9.01(a)(ii),”;
|
|
(b)
|
by
renumbering the second clause (b)(i) as clause (b)(ii) and adding
at the
beginning of such clause “Notwithstanding any other provision of the
Servicing Agreement or this Agreement to the contrary”;
and
|
Exhibit
One
-15
|
(c)
|
by
renumbering the remaining clauses of subsection (b) in numerical
order.
|
|
47.
|
Section
12.01 (Successor to Servicer) is hereby amended
by:
|
|
(a)
|
changing
the word “Owner” in the second line of the first paragraph to “Trustee”
and by adding the words “, in accordance with Section 3.03 of the Pooling
and Servicing Agreement, including the requirement therein that for
a
period of 30 calendar days following the termination of the Servicer,
the
Owner shall have the right to appoint an Acceptable Successor Servicer,”
after the word “shall” in the second line of the first paragraph
thereto;
|
|
(b)
|
adding
the reference to “Section, 9.01” after the words “Section 8.04”, in the
first and second paragraphs of such
Section.
|
|
(c)
|
adding
the following new sentence immediately following the first sentence
of the
first paragraph thereof to read as
follows:
|
|
Any
successor to the Servicer shall be an Acceptable Successor
Servicer.
|
|
(d)
|
amending
the existing second sentence of the first paragraph thereof by
(a) changing the word “Owner” to “the Trustee” and (b) by adding
the following provisos at the end of such
sentence:
|
|
;
provided,
however, that no such compensation shall be in excess of 0.375% per
annum.
|
|
(e)
|
replacing
the word “Owner” in the second line of the second paragraph thereof with
“the Owner and the Trustee”.
|
|
(f)
|
replacing
the reference to “Owner” in the fourth paragraph thereof with “the Owner
and the Trustee”.
|
|
48.
|
Section
12.02 (Amendment) is hereby amended by replacing the words “by written
agreement signed by the Servicer and the Owner” with “by written agreement
signed by the Depositor, Seller, Trustee and the Servicer,” and by adding
the following sentence at the end
thereof:
|
“The
party requesting such amendment shall, at its own expense, provide the Trustee,
the Owner and the Depositor with an Opinion of Counsel that such amendment
is
permitted under the terms of this Agreement, the Servicer has complied with
all
applicable requirements of this Agreement, and such amendment will not
materially adversely affect the interest of the Certificateholders in the
Serviced Mortgage Loans.”
|
49.
|
Section
12.10 (Confidentiality of Information) shall not apply to this
Agreement.
|
|
50.
|
New
Section 12.16 (Intended Third Party Beneficiaries) is added to the
Servicing Agreement to read as
follows:
|
Exhibit
One
-16
Section
12.16 Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trustee receives the benefit of the provisions of this
Agreement as an intended third party beneficiary of this Agreement to the extent
of such provisions. The Servicer shall have the same obligations to the Trustee
as if the Trustee were a party to this Agreement, and the Trustee shall have
the
same rights and remedies to enforce the provisions of this Agreement as if
it
were a party to this Agreement. The Servicer shall only take directions from
the
Trustee (if direction by the Trustee is required under this Agreement) unless
otherwise directed by this Agreement. Notwithstanding the foregoing, all rights
and obligations of the Trustee hereunder (other than the right to
indemnification and the indemnification obligations) shall terminate upon
termination of the Trust Fund pursuant to the Pooling and Servicing
Agreement.
|
51.
|
Exhibit
G is amended by deleting the “X” in the third column of the row with the
reference to “1122(d)(4)(xv)”.
|
|
52.
|
A
new Exhibit
H
is
hereby added to the Servicing Agreement by inserting therein the
special
foreclosure rights provision attached hereto as Exhibit
Four.
|
|
53.
|
A
new Exhibit
I
is
hereby added to the Servicing Agreement in the form set forth in
Schedule
Two hereof.
|
Exhibit
One
-17
EXHIBIT
TWO
Amended
and Restated Master Interim Servicing Agreement
_________________________________________________________________
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
Owner
and
GMAC
MORTGAGE CORPORATION
Servicer
AMENDED
AND RESTATED MASTER INTERIM SERVICING AGREEMENT
Dated
as
of January 1, 2006
_________________________________________________________________
|
TABLE
OF CONTENTS
|
|
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01 Defined Terms.
|
1
|
|
ARTICLE
II
|
|
|
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS
AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
|
|
|
Section
2.01 Servicing of Mortgage Loans.
|
11
|
|
Section
2.02 Maintenance of Servicing Files.
|
11
|
|
Section
2.03 Books and Records.
|
11
|
|
Section
2.04 Transfer of Mortgage Loans.
|
12
|
|
Section
2.05 Delivery of Mortgage Loan Documents.
|
12
|
|
ARTICLE
III
|
|
|
REPRESENTATIONS
AND WARRANTIES
|
|
|
Section
3.01 Representations and Warranties of the Servicer.
|
14
|
|
Section
3.02 Representations and Warranties of Owner
|
15
|
|
ARTICLE
IV
|
|
|
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
|
|
Section
4.01 Servicer to Act as Servicer.
|
17
|
|
Section
4.02 Collection of Mortgage Loan Payments.
|
19
|
|
Section
4.03 Realization Upon Defaulted Mortgage Loans.
|
19
|
|
Section
4.04 Establishment of Custodial Accounts; Deposits in Custodial
Accounts.
|
20
|
|
Section
4.05 Permitted Withdrawals From the Custodial Account.
|
21
|
|
Section
4.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
|
21
|
|
Section
4.07 Permitted Withdrawals From Escrow Account.
|
22
|
|
Section
4.08Payment of Taxes, Insurance and Other Charges, Maintenance
of Primary
Mortgage Insurance
Policies,
Collections Thereunder.
|
23
|
|
Section
4.09 Transfer of Accounts.
|
24
|
|
Section
4.10 Maintenance of Hazard Insurance.
|
24
|
|
Section
4.11 Blanket Hazard Insurance.
|
25
|
|
Section
4.12 Fidelity Bond, Errors and Omissions Insurance.
|
25
|
|
Section
4.13 Title, Management and Disposition of REO Property.
|
26
|
|
Section
4.14 Notification of Adjustments.
|
27
|
|
Section
4.15 Superior Liens
|
26
|
-i-
|
|
|
|
ARTICLE
V
|
|
|
PAYMENTS
TO THE OWNER
|
|
|
Section
5.01 Remittances.
|
29
|
|
Section
5.02 Statements to the Owner.
|
29
|
|
Section
5.03 Liquidation Reports.
|
30
|
|
ARTICLE
VI
|
|
|
GENERAL
SERVICING PROCEDURES
|
|
|
Section
6.01 Assumption Agreements.
|
30
|
|
Section
6.02 Satisfaction of Mortgages and Release of Mortgage Loan
Documents.
|
31
|
|
Section
6.03 Servicing Compensation.
|
32
|
|
Section
6.04 Annual Statement as to Compliance; Financial
Statements.
|
32
|
|
Section
6.05 Annual Independent Certified Public Accountants’ Servicing
Report.
|
33
|
|
Section
6.06 Owner’s Right to Examine Servicer Records.
|
33
|
|
Section
6.07 Non-solicitation.
|
33
|
|
ARTICLE
VII
|
|
|
REPORTS
TO BE PREPARED BY SERVICER
|
|
|
Section
7.01 Servicer Shall Provide Information as Reasonably
Required.
|
34
|
|
ARTICLE
VIII
|
|
|
THE
SERVICER
|
|
|
Section
8.01 Indemnification; Third Party Claims.
|
34
|
|
Section
8.02 Merger or Consolidation of the Servicer.
|
35
|
|
Section
8.03 Limitation on Liability of the Servicer and Others.
|
35
|
|
Section
8.04 Servicer Not to Resign.
|
36
|
|
Section
8.05 No Transfer of Servicing.
|
36
|
|
Section
8.06 Indemnification by Owner.
|
36
|
|
Section
8.07 Notice of Settlement and Claims.
|
38
|
|
Section
8.08 Limitation on Liability of Servicer and Others.
|
40
|
|
Section
8.09 Survival.
|
40
|
|
|
|
|
ARTICLE
IX
|
|
|
DEFAULT
|
|
|
Section
9.01 Events of Default.
|
40
|
|
Section
9.02 Waiver of Defaults.
|
42
|
|
ARTICLE
X
|
|
|
TERMINATION
|
|
|
Section
10.01 Termination.
|
42
|
|
Section
10.02 Removal of Mortgage Loans from Inclusion Under this Agreement
Upon a
Whole Loan Transfer.
|
42
|
|
Section
10.03 Transfer of Servicing for Defaulted Loans.
|
44
|
|
Section
10.04 Transfer of Books and Records.
|
44
|
-ii-
|
ARTICLE
XI
|
|
|
COMPLIANCE
WITH REGULATION AB
|
|
|
Section
11.01 Intent of the Parties; Reasonableness.
|
44
|
|
Section
11.02 Additional Representations and Warranties of the
Servicer.
|
45
|
|
Section
11.03 Information to Be Provided by the Servicer.
|
46
|
|
Section
11.04 Regulation AB Servicer Compliance Statement.
|
50
|
|
Section
11.05 Report on Assessment of Compliance and Attestation.
|
50
|
|
Section
11.06 Use of Subservicers and Subcontractors.
|
51
|
|
Section
11.07 Indemnification; Remedies.
|
52
|
|
Section
11.08 Third Party Beneficiary.
|
55
|
|
|
|
|
ARTICLE
XII
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
Section
12.01 Successor to the Servicer.
|
55
|
|
Section
12.02 Amendment.
|
56
|
|
Section
12.03 Force Majeure.
|
56
|
|
Section
12.04 Governing Law.
|
57
|
|
Section
12.05 Notices.
|
57
|
|
Section
12.06 Severability of Provisions.
|
58
|
|
Section
12.07 Exhibits and Schedules.
|
58
|
|
Section
12.08 General Interpretive Principles.
|
58
|
|
Section
12.09 Reproduction of Documents.
|
59
|
|
Section
12.10 Confidentiality of Information.
|
59
|
|
Section
12.11 Assignment by the Owner.
|
60
|
|
Section
12.12 No Partnership.
|
60
|
|
Section
12.13 Counterparts; Successors and Assigns.
|
60
|
|
Section
12.14 Entire Agreement.
|
61
|
|
Section
12.15 Further Agreements.
|
61
|
| SCHEDULES | |
|
Schedule
I
|
Mortgage Loan Schedule |
| EXHIBITS | |
|
Exhibit
A
|
Custodial
Account Letter Agreement
|
|
Exhibit
B
|
Escrow
Account Letter Agreement
|
|
Exhibit
C
|
Eligibility
Criteria
|
-iii-
|
Exhibit
D
|
Servicer
Compensation
|
|
Exhibit
E
|
Transfer
Instructions
|
|
Exhibit
F
|
Form
of Annual Certification
|
|
Exhibit
G
|
Servicing
Criteria to be Addressed in Assessment of Compliance with Regulation
AB
|
|
|
-iv-
THIS
IS
AN AMENDED AND RESTATED MASTER INTERIM SERVICING AGREEMENT, dated as of January
1, 2006, and is executed between Greenwich Capital Financial Products, Inc.
(the
“Owner”) and GMAC Mortgage Corporation (the “Servicer”). This Amended and
Restated Master Interim Servicing Agreement (the “Agreement”) shall replace the
Master Interim Servicing Agreement, dated as of March 26, 2003 between the
Owner
and the Servicer.
W
I T N E
S S E T H :
WHEREAS,
the Owner has acquired, and may from time to time acquire, on a
servicing-released basis, certain mortgage loans (each a “Mortgage Loan”)
pursuant to one or more loan purchase agreements between the Owner and one
or
more mortgage loan sellers (each a “Seller”).
WHEREAS,
the Servicer has agreed to service the Mortgage Loans on behalf of the Owner
from and after the related Effective Date (as defined herein).
WHEREAS,
the Owner and the Servicer desire that, from and after the related Effective
Date, the Mortgage Loans will be serviced by the Servicer on behalf of the
Owner
in accordance with the terms and provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Owner and the Servicer agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, all applicable federal, state and local laws
and
regulations and those mortgage servicing practices and procedures (including
collection practices and procedures) of the Servicer with respect to mortgage
loans of the same type as such Mortgage Loan that it services for its own
account in the jurisdiction where the related Mortgaged Property is located;
provided,
however,
that
when applied to the Owner or any Prior Servicer of any Mortgage Loan, the
reference to the Servicer’s practices shall not apply, and the practices and
procedures of prudent mortgage banking institutions which service mortgage
loans
of the same type as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located shall instead be deemed applicable.
Adjustment
Date:
As to
each ARM Loan, the date on which the Mortgage Interest Rate is adjusted in
accordance with the terms of the related Mortgage Note.
Agreement:
This
Amended and Restated Master Interim Servicing Agreement including all exhibits
and schedules hereto, amendments hereof and supplements hereto.
ARM
Loan:
A first
or second lien, conventional, 1-4 family residential Mortgage Loan with an
interest rate which adjusts from time to time in accordance with the related
Index and is subject to a Periodic Rate Cap and a Lifetime Rate Cap and which
may permit conversion to a fixed interest rate.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a legal holiday in the
jurisdictions in which the Servicer conducts its servicing activities, or
(iii)
a day on which banks in the jurisdictions in which the Servicer conducts
its
servicing activities are authorized or obligated by law or executive order
to be
closed.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time, or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Custodial
Account:
The
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled “[Servicer] Custodial Account in trust for [Owner],
Owner of Whole Mortgage Loans” and shall be established at a Qualified
Depository.
Custodial
Agreement:
Any
agreement between a Custodian and the Owner, providing for the custody of
Mortgage Loan Documents.
Custodian:
Any
document custodian holding Mortgage Loan Documents pursuant to the terms
of a
Custodial Agreement.
Damages:
Any and
all assessments, judgments, claims, liabilities, losses, costs, damages or
expenses (including interest, penalties and reasonable attorneys’ fees, expenses
and disbursements in connection with any action, suit or proceeding and
including any such reasonable attorneys’ fees, expenses and disbursements
incurred in enforcing any right of indemnification against any indemnitor);
provided
that
Damages shall not include punitive, consequential, exemplary or special damages
(other than punitive, consequential, exemplary and special damages required
to
be paid by the indemnified party under this Agreement to any Person (other
than
a party to this Agreement or any of its affiliates) arising out of an action
or
proceeding by such Person, which damages shall be deemed to be direct damages
to
the party required to pay such punitive, consequential, exemplary or incidental
damages).
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
2
Determination
Date:
The
last
day of the month preceding the month in which a Remittance Date
occurs.
Due
Date:
With
respect to any Mortgage Loan, each day on which payments of principal and
interest are required to be paid in accordance with the terms of the related
Mortgage Note, exclusive of any days of grace.
Due
Period:
With
respect to any Remittance Date, the period commencing on the first day of
the
month preceding the month of such Remittance Date and ending on the last
day of
the month of such Remittance Date.
Effective
Date:
With
respect to the Mortgage Loans initially subject hereto, January 1, 2006.
With
respect to additional Mortgage Loans to be subject hereto from time to time,
later of (i) the date set forth in the related Transmission (which shall
be the
closing date of the sale of the related Mortgage Loans by the Seller to the
Owner) and (ii) the date on which the Servicer receives the Electronic Data
File.
Electronic
Data File:
The
file provided to the Servicer by or on behalf of the Owner, as specified
in the
Transfer Instructions.
Eligibility
Criteria:
The
eligibility criteria for residential mortgage loans to be delivered by the
Owner
after the initial Effective Date to be serviced by the Servicer under this
Agreement, as specified on Exhibit: C, as the same may be amended from time
to
time with the mutual consent of the Owner and the Servicer.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled “[Servicer] Escrow Account, in trust for [Owner],
Owner of Whole Mortgage Loans, and various Mortgagors” and shall be established
at a Qualified Depository, provided that no such accounts established at
any
Qualified Depository shall in any event contain funds in the aggregate in
excess
of the FDIC insurance limits.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Xxxxxx
Xxx:
Xxxxxx
Xxx, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
4.12.
3
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended
from time to time.
Foreclosure:
The
procedure pursuant to which a lienholder acquires title to a Mortgaged Property
in a foreclosure sale, or pursuant to any other comparable procedure allowed
under applicable law, when a Mortgage Loan is in default.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Full
Principal Prepayment:
A
Principal Prepayment made by a Mortgagor of the entire principal balance
of a
Mortgage Loan.
GAAP:
Generally accepted accounting principles and procedures, consistently
applied.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto.
In
Bankruptcy:
A
Mortgage Loan as to which the related Mortgagor has sought relief under or
has
otherwise been subjected to the federal bankruptcy laws or any other similar
laws of general application for the relief of debtors through the institution
of
appropriate proceedings, and such proceedings are continuing, but excluding
any
Mortgage Loan as to which the related Mortgagor is current under a bankruptcy
plan.
In
Foreclosure:
A
Mortgage Loan as to which the first action necessary to be taken to commence
proceedings in Foreclosure has been taken, and such proceedings are
continuing.
Index:
With
respect to each ARM Loan, the index, as specified in the related Mortgage
Note,
used to determine the Mortgage Interest Rate on each Adjustment Date on such
ARM
Loan.
Index
Rate:
With
respect to each ARM Loan, on each Adjustment Date, the rate per annum equal
to
the Index, calculated as provided in the related Mortgage Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lifetime
Rate Cap:
With
respect to each ARM Loan, the maximum Mortgage Interest Rate over the term
of
such Mortgage Loan, as specified in the related Mortgage Note.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 4.13.
4
Margin:
With
respect to each ARM Loan, the fixed percentage amount set forth in the related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment of principal
and
interest thereon which is payable by the related Mortgagor under the related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a lien on real property securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance
with
the provisions of the related Mortgage Note, and in the case of an ARM Loan,
as
adjusted from time to time on each Adjustment Date for such Mortgage Loan
to
equal the Index Rate for such Mortgage Loan plus the Margin for such Mortgage
Loan, and subject to the limitations on such interest rate imposed by the
Periodic Rate Cap and the Lifetime Rate Cap.
Mortgage
Loan:
An
individual Mortgage Loan described herein and as further identified on the
Mortgage Loan Schedule, as amended from time to time, which Mortgage Loan
includes without limitation the Mortgage Loan Documents, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds, and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
With
respect to each Mortgage Loan, the original mortgage loan legal documents
held
by the Owner or by a Custodian on the Owner’s behalf.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached hereto as Schedule
I,
as
supplemented from time to time in accordance with the provisions
hereof.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Advance:
Any
Servicing Advance which, in the good faith judgment of the Servicer, will
not be
ultimately recoverable by the Servicer from Liquidation Proceeds or other
proceeds of the related Mortgage Loan. The determination by the Servicer
that it
has made a Nonrecoverable Advance shall be evidenced by an Officer’s Certificate
of the Servicer delivered to the Owner and detailing the reasons for such
determination.
5
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President or by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Servicer, and delivered to the Owner as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the other
party.
Originator:
With
respect to any Mortgage Loan, the entity or entities that (a) took the related
Mortgagor’s loan application; (b) processed the related Mortgagor’s loan
application; and/or (c) closed and/or funded such Mortgage Loan.
Owner:
Greenwich Capital Financial Products, Inc., its successors in interest and
assigns.
Partial
Principal Prepayment:
A
Principal Prepayment by a Mortgagor in part but not in full of the outstanding
principal balance of a Mortgage Loan.
Periodic
Rate Cap:
With
respect to each ARM Loan, the maximum number of percentage points by which
the
Mortgage Interest Rate may increase or decrease on any Adjustment
Date.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
by the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America;
(ii) (a)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust Servicer incorporated under the laws of the
United States of America or any state thereof and subject to supervision
and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term deposit rating and/or the long-term
unsecured debt obligations or deposits of such depository institution or
trust
Servicer at the time of such investment or contractual commitment providing
for
such investment are rated in one of the two highest rating categories by
each
Rating Agency and (b) any other demand or time deposit or certificate of
deposit
that is fully insured by the FDIC;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an agency or instrumentality
of
the United States of America, the obligations of which are backed by the
full
faith and credit of the United States of America, in either case entered
into
with a depository institution or trust Servicer (acting as principal) described
in clause (ii)(a) above;
6
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that
are
rated in the highest rating categories by each Rating Agency at the time
of such
investment or contractual commitment providing for such investment; provided,
however,
that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of securities issued by such corporation and
held
as Permitted Investments to exceed 10% of the aggregate outstanding principal
balances and amounts of all the Permitted Investments;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than one year after the date of issuance thereof) which are rated in the
highest
rating categories by each Rating Agency at the time of such
investment;
(vi) any
other
demand, money market or time deposit, obligation, security or investment
as may
be acceptable to each Rating Agency; and
(vii) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (i)) and which money market funds
are
rated in one of the two highest rating categories by each Rating
Agency;
provided,
however, that no instrument or security shall be a Permitted Investment if
such
instrument or security evidences a right to receive only interest payments
with
respect to the obligations underlying such instrument or if such security
provides for payment of both principal and interest with a yield to maturity
in
excess of 120% of the yield to maturity at par; and provided further that
any
such instrument or security must be payable on demand or on a specified date
not
later than the Remittance Date on which amounts held therein are required
to be
distributed.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
Servicer, limited liability Servicer, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance, or any replacement policy therefor
obtained by the Servicer pursuant to Section 4.08.
Prime
Rate:
The
prime rate of U.S. money center banks as published from time to time in The
Wall
Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, full or partial,
which is received in advance of its scheduled Due Date, including any prepayment
penalty or premium thereon, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any
month
or months subsequent to the month of prepayment.
7
Prior
Servicers:
Collectively, all servicers and subservicers other than the Servicer, which,
at
any time prior to the Effective Date, pooled, sold, serviced or subserviced
any
of the Mortgage Loans.
Qualified
Appraiser:
An
appraiser, duly appointed by the Servicer, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, which appraiser and the appraisal made by such appraiser both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Depository:
A
depository institution, (a) the accounts of which are insured by the FDIC
and
(b) the short term debt ratings and the long term deposit ratings of which
are
rated in one of the two highest rating categories by each of the Rating
Agencies.
Qualified
Insurer:
Any
entity that insures or guarantees all or part of the risk of loss with respect
to a Mortgage Loan, duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by Xxxxxx Mae or Xxxxxxx Mac.
Rating
Agency:
Standard & Poor’s Ratings Service, a division of The McGraw Hill Companies
Inc., Xxxxx’x Investors Service, Inc. or Fitch, Inc.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Date:
With
respect to any Mortgage Loan, the date on which such Mortgage Loan is removed
from coverage by this Agreement upon a Whole Loan Transfer.
Recourse
Obligation:
With
respect to any Mortgage Loan, any obligation or liability (actual or contingent)
of the Owner or its affiliates (i) for loss of principal incurred in connection
with the Foreclosure or other disposition of, or other realization or attempt
to
realize upon the collateral securing, such Mortgage Loan (including, Damages
relating to loss mitigation or obtaining deeds in lieu of foreclosure); (ii)
to
repurchase such Mortgage Loan in the event that the related Mortgagor is
In
Bankruptcy, In Foreclosure or in Litigation; or (iii) to repurchase such
Mortgage Loan in the event of a delinquency or other payment default thereunder
by the related Mortgagor.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
8
Regulation
AB Servicer:
As
defined in Section 11.03(c).
Remittance
Date:
The
10th
(tenth)
Business Day of any month.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Owner as described
in Section 4.13.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller:
As
defined in the recitals hereto.
Servicer:
GMAC
Mortgage Corporation, or any of its successors in interest or any successor
under this Agreement appointed as herein provided.
Servicer
Information:
As
defined in Section 11.07(a).
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations relating to each
Mortgage Loan, including the cost of (a) the preservation, restoration and
protection of the Mortgaged Property, (b) any enforcement, administrative
or
judicial proceedings, or any legal work or advice specifically related to
servicing the Mortgage Loans, including foreclosures, bankruptcies,
condemnations, drug seizures, elections, foreclosures by subordinate or superior
lienholders, and other legal actions incidental to the servicing of the Mortgage
Loans (provided that such expenses are reasonable and that the Servicer
specifies the Mortgage Loan(s) to which such expenses relate), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may
become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage and (e) compliance with the
obligations under Section 4.08.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
9
Servicing
Fee:
In any
month, the monthly fee per Mortgage Loan specified in Exhibit D, multiplied
by
the number of Mortgage Loans serviced by the Servicer hereunder, as of the
first
day of the related month.
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.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Owner upon request, as such list
may
from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, the principal balance
of
such Mortgage Loan after giving effect to all amounts attributable to principal
previously distributed to the Owner with respect to the Mortgage
Loan.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Securitization Transaction that are identified in Item 1122(d) of Regulation
AB.
Transfer
Instructions:
The
instructions set forth on Exhibit E (or as otherwise agreed upon between
the
Owner and the Servicer) detailing the procedures pursuant to which the Owner,
the applicable Prior Servicer and the Servicer shall effect the assumption
of
the servicing by the Servicer, as the same may be amended or supplemented
from
time to time by the Servicer (with as much notice as reasonably feasible
to the
Owner) with respect to Mortgage Loans delivered after the initial Effective
Date.
Transmission:
A
notice, dated as of the related Effective Date, given by the Owner to the
Servicer, from time to time, pursuant to which additional Mortgage Loans,
as
described on the schedule attached thereto (which schedule shall become part
of
the Mortgage Loan Schedule as of the related Effective Date), are made subject
to the terms of this Agreement.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
10
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS
AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Servicing
of Mortgage Loans.
The
Servicer does hereby agree to service the Mortgage Loans, from and after
the
related Effective Date, pursuant to the terms of this Agreement. The Mortgage
Loans initially subject to this Agreement are described in the Mortgage Loan
Schedule attached hereto on the initial Effective Date. From and after the
initial Effective Date, the Servicer shall assume responsibility under this
Agreement to service and administer additional Mortgage Loans pursuant to
a
Transmission delivered to the Servicer by the Owner, setting forth the Effective
Date with respect thereto, provided that any new Mortgage Loans that the
Owner
desires to make subject to this Agreement meet the Eligibility Criteria then
in
effect.
Section
2.02 Maintenance
of Servicing Files.
Upon
receipt thereof from or on behalf of the Owner, the Servicer shall maintain
a
Servicing File consisting of all documents necessary to service the Mortgage
Loans. The possession of each Servicing File by the Servicer is for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Servicer is in a custodial capacity only. The Servicer
acknowledges that the ownership of each Mortgage Loan, inclusive of the
servicing rights thereto, is vested in the Owner. All rights arising out
of the
Mortgage Loans including 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 for the sole purpose of servicing the Mortgage Loans
and such retention and possession by the Servicer is in a custodial capacity
only in trust for the exclusive benefit of the Owner 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
reflect clearly 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. The parties
agree the Servicer is not obligated to locate or obtain Mortgage Loan Documents
that it did not or will not receive from or on behalf of the Owner or that
it
did not receive in the ordinary course of its servicing of such Mortgage
Loans;
provided,
however,
that if
the Servicer has actual knowledge that it has not received any necessary
documents, it shall so inform the Owner.
Section
2.03 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 appropriately
identified in the Servicer’s computer system to clearly reflect the ownership of
the Mortgage Loan by the Owner. In particular, the Servicer shall maintain
in
its possession, available for inspection by the Owner, or its designee and
shall
deliver to the Owner upon demand, evidence of compliance with all federal,
state
and local laws, rules and regulations, as applicable, including documentation
as
to the method used in determining the applicability of the provisions of
the
Flood Disaster Protection Act of 1973, as amended, to the Mortgaged Property,
documentation evidencing insurance coverage and periodic inspection reports
as
required by Section 4.13. To the extent that original documents are not required
for purposes of realization of Liquidation Proceeds or Insurance Proceeds,
documents maintained by the Servicer may be in the form of microfilm or
microfiche or such other reliable means of recreating original documents,
including optical imagery techniques, so long as the Servicer complies with
requirements that are generally accepted by prudent Servicers in the mortgage
loan servicing industry.
11
The
Servicer shall maintain with respect to each Mortgage Loan and shall make
available for inspection by the Owner or its designee the related Servicing
File
(or copies thereof) during the time the Owner retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and
regulations.
Section
2.04 Transfer
of Mortgage Loans.
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 received by the Servicer
in accordance with this Section 2.04. The Owner may, subject to the terms
of
this Agreement, sell and transfer one or more of the Mortgage Loans in
accordance with Sections 10.02 and 12.10; 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 and an assignment and assumption of this Agreement reasonably
acceptable to the Servicer has been executed and delivered 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 such assignee’s ownership of the related Mortgage Loans, and the
previous Owner shall be deemed released from its obligations hereunder with
respect to such Mortgage Loans from and after the date of such sale or transfer
without the necessity of any action on the part of the Servicer.
Section
2.05 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 6.01 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 promptly
after
receipt thereof, but in no event later than 180 days after its execution,
provided,
however,
that 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 or due to the failure of the Owner to
provide the documentation required with respect to such recordation, the
Servicer shall continue to use its best efforts to obtain such documents
and
effect delivery as soon as possible after its receipt thereof.
12
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 to the Custodial Agreement.
During
the time that any such documentation is held by the Servicer, such possession
is
in trust for the benefit of the Owner, and the Servicer shall return such
documentation to the Custodian upon the request of the Owner or when the
Servicer’s need therefore no longer exists.
Section
2.06 Loan
Audits and Data Integrity Review.
Servicer
shall conduct audits of Mortgage Loans on behalf of Owner. Such audits shall
entail:
|
(i)
|
a
comparison of information contained in the Mortgage Note with information
populated to Servicer’s servicing system,
including
|
|
a.
|
property
address information
|
|
b.
|
original
principal balance
|
|
c.
|
origination
date
|
|
d.
|
original
amortization term
|
|
e.
|
principal
and interest payment change date
|
|
f.
|
interest
rate change date
|
|
g.
|
initial
payment change frequency
|
|
h.
|
subsequent
payment change frequency
|
|
i.
|
initial
interest rate change frequency
|
|
j.
|
subsequent
interest rate change frequency
|
|
k.
|
Index
|
|
l.
|
interest
rate change rounding
|
|
m.
|
margin
|
|
n.
|
lead
time
|
|
o.
|
first
interest rate change cap
|
|
p.
|
subsequent
interest rate caps
|
|
q.
|
interest
rate ceiling
|
|
r.
|
interest
rate floor
|
|
s.
|
interest
only term
|
|
t.
|
interest
only flag
|
|
u.
|
balloon
flag
|
|
v.
|
interest
rate
|
|
w.
|
principal
and interest payment
|
|
x.
|
1st
payment due date
|
|
y.
|
maturity
date
|
|
z.
|
primary
Mortgagor first and last names
|
|
aa.
|
secondary
Mortgagor first and last names
|
|
bb.
|
prepayment
penalty term
|
|
cc.
|
prepayment
penalty amount
|
|
dd.
|
prepayment
penalty type (e.g., “hard”, “soft”,
“blended”);
|
|
ee.
|
13
|
(ii)
|
correction
of all data elements above in conformance with the Mortgage Note;
and
|
|
(iii)
|
for
each ARM Loan, an ARM audit, consisting
of
|
|
a.
|
a
review of any interest rate changes and their impact on principal
and
interest payments previously made by Mortgagors;
and
|
|
b.
|
re-amortization
of the loan.
|
Servicer
agrees to complete such audits within the later of seventy (70) days after
(i)
Servicer’s receipt of the Mortgage Note or (ii) Servicer’s receipt of a complete
and accurate data file as specified in the Transfer Instructions.
In
the
event any adjustments need to made to a Mortgagor’s account based upon the
audits performed, Owner agrees to reimburse Servicer for any amounts required
of
such adjustments. Once audits are completed on all Mortgage Loans contained
within a particular transfer, Servicer shall provide Owner with a report
summarize the results. Owner agrees to pay Servicer the “Loan Audits and Data
Integrity Review” fee specified in Exhibit D.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 Representations
and Warranties of the Servicer.
The
Servicer represents and warrants to and covenants with the Owner that as
of the
date hereof and as of each Effective Date or as of such other date specifically
provided herein:
(a) The
Servicer is a validly existing corporation in good standing under the laws
of
the State of its organization and is qualified to transact business in, is
in
good standing under the laws of, and possesses all licenses necessary for
the
conduct of its business in, each state in which any Mortgaged Property is
located or is otherwise exempt or not required under applicable law to effect
such qualification or license and no demand for such qualification or license
has been made upon the Servicer by any such state, and in any event the Servicer
is in compliance with the laws of each such State to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this Agreement.
(b) The
Servicer has full power and authority to execute, deliver and perform, and
to
enter into and consummate all transactions contemplated by this Agreement
and to
conduct its business as presently conducted, has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered
this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of the Servicer, enforceable against it in accordance with its terms subject
to
bankruptcy laws and other similar laws of general application affecting rights
of creditors and subject to the application of the rules of equity, including
those respecting the availability of specific performance.
14
(c) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated thereby and hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict
with
any of the terms, conditions or provisions of the Servicer’s articles of
incorporation or by-laws or materially conflict with or result in a material
breach of any of the terms, conditions or provisions of any legal restriction
or
any agreement or instrument to which the Servicer is now a party or by which
it
is bound, or constitute a default or result in an acceleration under any
of the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject.
(d) There
is
no litigation pending or, to the Servicer’s knowledge, threatened with respect
to the Servicer which is reasonably likely to have a material adverse effect
on
the execution, delivery or enforceability of this Agreement, or which is
reasonably likely to have a material adverse effect on the financial condition
of the Servicer.
(e) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement or the consummation of
the
transactions contemplated by this Agreement except for consents, approvals,
authorizations and orders which have been obtained.
(f) No
written statement, report or other document furnished or to be furnished
pursuant to the Agreement contains or will contain any statement that is
or will
be inaccurate or misleading in any material respect or omits to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading.
Section
3.02 Representations
and Warranties of Owner
The
Owner
warrants and represents to and covenants with the Servicer that as of the
date
hereof, and as of each Effective Date as to the Mortgage Loans the servicing
obligations with respect to which are transferred to the Servicer thereon,
or as
of such other date specifically provided herein:
(a) The
Owner
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware. The Owner is qualified or registered to transact
business, and is duly licensed, in each jurisdiction in which the ownership
of
property or the conduct of its respective business requires such qualification,
registration or licensing, except to the extent that there is an applicable
exemption or where the failure to be so licensed, registered, qualified or
in
good standing is not material.
(b) The
Owner
has the power, authority and legal right to enter into and perform this
Agreement and to perform the obligations required of it hereunder, and this
Agreement and any document or instrument to be delivered to the Servicer
by the
Owner pursuant hereto has been duly authorized, executed and
delivered.
(c) This
Agreement and any documents or instruments now or hereafter executed and
delivered to the Servicer by the Owner pursuant to this Agreement constitute
(or
shall, when delivered to the Servicer by the Owner, constitute) valid and
legally binding obligations of the Owner enforceable against the Owner in
accordance with their respective terms, subject to bankruptcy laws and other
similar laws of general application affecting the rights of creditors and
subject to the application of the rules of equity, including those respecting
the availability of specific performance.
15
(d) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated thereby and hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict
with
any of the terms, conditions or provisions of the Owner’s articles of
incorporation or by-laws or materially conflict with or result in a material
breach of any of the terms, conditions or provisions of any legal restriction
or
any agreement or instrument to which the Owner is now a party or by which
it is
bound, or constitute a default or result in an acceleration under any of
the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Owner or its property is
subject.
(e) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Owner
of or
compliance by the Owner with this Agreement or the consummation of the
transactions contemplated by this Agreement except for consents, approvals,
authorizations and orders which have been obtained.
(f) The
Owner
shall, on or before the related Effective Date, deliver or cause to be delivered
to the Servicer or the Custodian, as applicable, all of the books, records,
data, files and Mortgage Loan Documents, including records on microfiche
or its
equivalent, reasonably required by the Servicer to document and service each
Mortgage Loan; such books, records, data, files and documents contain all
of the
items (including hazard insurance policies, flood insurance policies and
private
mortgage insurance policies) which are required by the Qualified Insurers
or by
Accepted Servicing Practices to service the Mortgage Loans; are true, accurate
and complete in all material respects; and it is reasonable for the Servicer
to
rely thereon.
(g) As
of the
applicable Effective Date, if any Mortgage Loan is secured by a Mortgaged
Property located in Federal Emergency Management Agency designated flood
areas,
then (to the extent required by Accepted Servicing Practices) flood insurance
policies are in full force and effect in the amounts required by Accepted
Servicing Practices or are insured through the Owner’s or the Prior Servicer’s
“gap coverage” flood insurance policy.
(h) As
of the
applicable Effective Date, all Mortgaged Property is currently insured against
fire and has extended coverage insurance in the amounts required under Accepted
Servicing Practices; all insurance premiums on such insurance policies have
been
paid in a timely manner; and there have been no fire losses on any Mortgaged
Property where the Owner’s estimate of loss is materially greater than the net
recovery from the fire insurance carrier. To the Owner’s knowledge, there have
been no fire losses on any Mortgaged Property as to which there is a pending
coinsurance claim.
(i) There
is
no litigation pending or, to the Owner’s knowledge, threatened with respect to
the Owner which is reasonably likely to have a material adverse effect on
the
execution, delivery or enforceability of this Agreement, or which is reasonably
likely to have a material adverse effect on the servicing or the financial
condition of the Owner.
16
(j) As
of the
applicable Effective Date, all of the Mortgage Loans have, or the Owner shall
promptly cause to be obtained, a valid, fully paid, freely transferable,
life of
the loan tax service contract and flood service contract.
(k) There
are
no accounts of Mortgagors that are pledged in lieu of the maintenance of
an
escrow account for taxes, assessments, insurance or other escrow items owed
by
the Mortgagor.
(l) As
of the
applicable Effective Date, all calculations required to be made by the Owner
with respect to the amount of principal, interest, escrow payments and other
amounts due and owing by a Mortgagor from time to time under each Mortgage
Loan
have been made in compliance with Accepted Servicing Practices. All invoices
transmitted to the Mortgagors by the Owner for principal, interest, escrow
payments and all other amounts due and payable under each Mortgage Loan have
been prepared, and the funds collected from the Mortgagors have been applied
for
the payment of such amounts, in compliance with Accepted Servicing
Practices.
(m) No
written statement, report or other document furnished or to be furnished
pursuant to the Agreement contains or will contain any statement that is
or will
be inaccurate or misleading in any material respect or omits to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading.
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 in accordance with this Agreement and with Accepted Servicing
Practices (giving due consideration to the Owner’s reliance on the Servicer),
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 and with Accepted Servicing Practices.
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 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
unless the Servicer has obtained the prior written consent of the Owner,
the
Servicer shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, reduce or increase the outstanding principal balance (except
for
actual payments of principal) or change 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 prepare, execute and
deliver, 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 Properties. The Servicer
shall
waive a prepayment penalty or charge only under the following circumstances:
(i)
such waiver is standard and customary in servicing similar Mortgage Loans
and
such waiver relates to a default or a reasonably foreseeable default and
would,
in the reasonable judgment of the Servicer, maximize recovery of total proceeds
taking into account the value of such prepayment penalty or charge and the
related Mortgage Loan or (ii) the collection of such prepayment penalty or
charge would be in violation of applicable laws. The Servicer hereby
acknowledges that, for the purposes of the preceding sentence, (i) the law
applicable to the enforcement of prepayment penalties and charges is the
law
applicable to the related originator of the Mortgage Loans and (ii) state
laws
prohibiting or limiting prepayment penalties or charges are preempted and
thereby inapplicable if the related originator of the mortgage loans is a
federal association or federal bank or an operating subsidiary of such
institution. In connection with clause (ii) in the preceding sentence, with
respect to each Mortgage Loan, the Owner will provide the Servicer with the
name
of the related originator and the type of organization of such originator.
In
the event the Servicer determines that (i) the foregoing acknowledgement
is no
longer accurate and (ii) applicable state law would prevent it from fully
enforcing prepayment penalties or charges, the Servicer shall (i) provide
prompt
notice to such effect to the Owner and (ii) provide a written Opinion of
Counsel
from a nationally recognized law firm experienced in regulatory matters
concluding that fully enforcing prepayment penalties or charges would violate
applicable law.
17
The
Servicer shall perform all of its servicing responsibilities hereunder or
may
cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Servicer of a subservicer shall not release the
Servicer from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each subservicer as fully
as
if such acts and omissions were those of the Servicer. The Servicer shall
pay
all fees and expenses of each subservicer from its own funds, and a
subservicer’s fee shall not exceed the Servicing Fee.
At
the
cost and expense of the Servicer, without any right of reimbursement from
the
Custodial Account, the Servicer shall be entitled to terminate the rights
and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer meeting the requirements in the
preceding paragraph; provided,
however,
that
nothing contained herein shall be deemed to prevent or prohibit the Servicer,
at
the Servicer’s option, from electing to service the related Mortgage Loans
itself. In the event that the Servicer’s responsibilities and duties under this
Agreement are terminated pursuant to Section 8.04 or 10.01, and if requested
to
do so by the Owner, the Servicer shall at its own cost and expense terminate
the
rights and responsibilities of each subservicer effective as of the date
of
termination of the Servicer. The Servicer shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities
of
each subservicer from the Servicer’s own funds without reimbursement from the
Owner.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and a subservicer or any reference herein to actions
taken
through a subservicer or otherwise, the Servicer shall not be relieved of
its
obligations to the Owner and shall be obligated to the same extent and under
the
same terms and conditions as if it alone were servicing and administering
the
Mortgage Loans. The Servicer shall be entitled to enter into an agreement
with a
subservicer for indemnification of the Servicer by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
18
Any
subservicing agreement and any other transactions or services relating to
the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and Servicer alone, and the Owner shall have no obligations,
duties
or liabilities with respect to such Subservicer including no obligation, duty or
liability of to pay such subservicer’s fees and expenses. For purposes of
distributions and advances by the Servicer pursuant to this Agreement, the
Servicer shall be deemed to have received a payment on a Mortgage Loan when
a
subservicer has received such payment.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer shall proceed with reasonable diligence and
in
accordance with Accepted Servicing Practices, to collect all payments due
under
each Mortgage Loan when the same shall become due and payable. Further, the
Servicer shall take reasonable care in ascertaining and estimating annual
ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, 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.
The
Servicer shall use its reasonable efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert the ownership
of
properties securing such of the Mortgage Loans as come into and continue
in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments pursuant to the terms of this Agreement. The Servicer
shall use its reasonable efforts to realize upon defaulted Mortgage Loans
in
such 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 any
Mortgaged Property shall have suffered damage, the Servicer shall not be
required to expend its own funds toward the restoration of such property
unless
it shall determine in its discretion (i) that such restoration will increase
the
proceeds of liquidation of the related Mortgage Loan to the 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. The
Servicer shall be responsible for all costs and expenses incurred by it in
any
such proceedings or functions as Servicing Advances; provided,
however,
that it
shall be entitled to reimbursement therefor as provided in Section 4.05.
Notwithstanding anything to the contrary contained herein, in connection
with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the
Servicer has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Owner
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. Upon completion of the inspection, the Servicer shall promptly
provide the Owner with a written report of the environmental inspection.
After
reviewing the environmental inspection report, the Owner shall direct the
Servicer as to how the Servicer shall proceed with respect to the Mortgaged
Property, and the Servicer shall follow the Owner’s directions with respect
thereto.
19
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. Each
Custodial Account shall be established with a Qualified Depository. Any funds
in
a Custodial Account may be invested in Permitted Investments for the benefit
of
the Owner (with any income earned thereon for the benefit of the Servicer).
Funds deposited in the Custodial Account may be drawn on by the Servicer
only in
accordance with Section 4.05. The creation of any Custodial Account shall
be
evidenced by a letter agreement in the form shown in Exhibit
A
hereto.
The original of such letter agreement shall be furnished to the Owner upon
request. The Servicer acknowledges and agrees that the Servicer shall bear
any
losses incurred with respect to Permitted Investments. The amount of any
such
losses shall be immediately deposited by the Servicer in the Custodial Account,
out of the Servicer’s own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Custodial Account or Accounts no later than the second Business Day after
receipt of funds, and retain therein the following payments and
collections:
(i) all
payments on account of principal, including Principal Prepayments and any
prepayment penalties or premiums with respect thereto, on the Mortgage
Loans;
(ii) all
payments on account of interest on the Mortgage Loans;
(iii) all
Liquidation Proceeds and REO Disposition Proceeds;
(iv) any
net
amounts received by the Servicer in connection with any REO Property pursuant
to
Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 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 Accepted Servicing Practices,
the
loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property 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 Accepted
Servicing Practices, the loan documents or applicable law; and
(vii) any
amounts required to be deposited in the Custodial Account pursuant to Sections
4.07, 4.14, 5.01 and 6.02.
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 assumption fees, and other ancillary
fees,
excluding prepayment penalties, to the extent permitted by Section 6.01,
need
not be deposited by the Servicer in the Custodial Account.
20
Section
4.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, make withdrawals from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in Section
5.01;
(ii) to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (ii) with respect to any Mortgage
Loan being limited to Liquidation Proceeds, Condemnation Proceeds, and Insurance
Proceeds and REO Disposition Proceeds related to such Mortgage
Loan;
(iii) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date) and (b) any Servicing Fee to which the Servicer is entitled
in
accordance with the terms hereof to the extent such Servicing Fee has not
been
paid to or retained by the Servicer;
(iv) to
reimburse itself for any Nonrecoverable Advances;
(v) to
transfer funds to another Qualified Depository in accordance with Section
4.09
hereof;
(vi) to
remove
funds deposited in the Custodial Account in error by the Servicer;
and
(vii) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
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. Each Escrow Account shall be established with a Qualified
Depository. Any funds deposited in an Escrow Account may be invested in
Permitted Investments. Funds deposited in an Escrow Account may be drawn
on by
the Servicer in accordance with Section 4.07. The creation of any Escrow
Account
shall be evidenced by a letter agreement in the form shown in Exhibit
B.
The
original of such letter agreement shall be furnished to the Owner upon request.
The Servicer acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of any such losses
shall be immediately deposited by the Servicer in the Escrow Account out
of the
Servicer’s own funds, with no right to reimbursement therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Escrow Account or Accounts no later than the second Business Day after
receipt of funds, and retain therein:
21
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms of
this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Servicer shall make withdrawals from an Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except as provided
in Section 4.07, the Servicer shall be entitled to retain any interest paid
on
funds deposited in an Escrow Account by the Qualified Depository.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums, Primary Mortgage Insurance Policy premiums, if
applicable, 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 connection with an acquisition of REO
Property;
(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;
(vii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(viii) to
remove
funds placed in an Escrow Account in error by the Servicer; and
(ix) to
clear
and terminate the Escrow Account on the termination of this
Agreement.
22
As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in an Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement
therefor.
Section
4.08 Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage Insurance
Policies, Collections Thereunder.
With
respect to each first lien 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 Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof 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 or 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. With respect to each first lien Mortgage Loan, 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.
With
respect to any second lien Mortgage Loans, the Servicer shall advance or
cause
to be advanced funds as necessary for the purpose of effectuating the payment
of
taxes and assessments on any Mortgaged Property (to the extent that such
taxes
or assessments have not been paid by the related Mortgagor or the owner or
the
servicer of the related first lien mortgage loan and to the extent the Servicer
is otherwise aware that such payment of taxes and assessments has not been
made). The Servicer shall only advance such amounts to the extent such advances,
in the good faith judgment of the Servicer, will be recoverable by the Servicer
out of late Monthly Payments, insurance proceeds, liquidation proceeds, or
otherwise out of the proceeds of the related Mortgage Loan; and provided,
further, that Servicer shall make such payments within such time period required
to avoid the loss of the Mortgaged Property by foreclosure of a tax or other
lien.
The
Servicer shall maintain a blanket policy insuring against losses arising
from
fire and hazards covered under extended coverage on all of the related second
lien Mortgage Loans. The Servicer shall maintain in full force and effect
Primary Mortgage Insurance Policies issued by a Qualified Insurer with respect
to each Mortgage Loan for which such coverage is herein required and for
which
the Owner has provided information substantiating such coverage. Such coverage
will be maintained until the ratio of the current outstanding principal balance
of the related Mortgage Loan to the appraised value of the related Mortgaged
Property, based on the most recent appraisal of the Mortgaged Property performed
by a Qualified Appraiser, such appraisal to be included in the Servicing
File,
is reduced to 80.00% or less (or such other amount provided under applicable
law). The Servicer shall not cancel or refuse to renew any Primary Mortgage
Insurance Policy that is required to be kept in force under this Agreement
unless a replacement Primary Mortgage Insurance Policy for such canceled
or
nonrenewed policy is obtained from and maintained with a Qualified Insurer.
The
Servicer shall not take any action which would result in noncoverage under
any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of the Servicer would have been covered thereunder. In connection
with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Servicer shall promptly notify the insurer
under
the related Primary Mortgage Insurance Policy, if any, of such assumption
or
substitution of liability in accordance with the terms of such policy and
shall
take all actions which may be required by such insurer as a condition to
the
continuation of coverage under the Primary Mortgage Insurance Policy. If
such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
23
In
connection with its activities as Servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Owner, claims to the insurer under any
Private Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section
4.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. The Servicer shall notify the Owner
of
any such transfer within 15 Business Days of transfer.
Section
4.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained (in the event that the related Mortgagor
fails to maintain) 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 equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan and (ii) the greater
of
(a) the outstanding principal balance of the Mortgage Loan, and (b) the
percentage such that the proceeds thereof shall be sufficient to prevent
the
Mortgagor and/or the mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified in the Federal Register by the Federal
Emergency Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Servicer will cause
to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan and (iii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain on each
REO
Property, fire and hazard insurance with extended coverage in an amount which
is
at least equal to the maximum insurable value of the improvements which are
a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the Servicer
under any such policies other than amounts to be deposited in the Escrow
Account
and applied to the restoration or repair of the 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. It is understood and agreed that no
other
additional insurance need be required by the Servicer or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loans, other than
as
provided under applicable state or federal 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 and its successors and/or assigns and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
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 are Qualified Insurers and are licensed to
do
business in the state wherein the property subject to the policy is located.
All
insurance policies maintained pursuant to this Section 4.10 shall be maintained
with a Qualified Insurer.
24
Section
4.11 Blanket
Hazard Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy with a
Qualified Insurer insuring against fire and hazards of extended coverage
on all
of the Mortgage Loans, then, to the extent such policy names the Owner as
loss
payee and provides coverage in an amount equal to the amount required under
Section 4.10, and otherwise complies with the requirements of the Section
4.10,
the Servicer shall be deemed conclusively to have satisfied its obligations
under Section 4.10, it being understood and agreed that such blanket policy
may
contain a deductible clause, in which case the Servicer shall, in the event
that
there shall not have been maintained on the related Mortgaged Property a
policy
complying with Section 4.10, and there shall have been a loss which would
have
been covered by such policy, deposit in the Custodial Account the difference,
if
any, between the amount that would have been payable under a policy complying
with Section 4.10 and the amount paid under such blanket policy. Upon the
request of the Owner, the Servicer shall cause to be delivered to the Owner
a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
30 days’ prior written notice to the Owner
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, with a Qualified Insurer, a
blanket
Fidelity Bond and an errors and omissions insurance policy, with broad coverage
with responsible companies (reasonably acceptable to the Owner) on all officers,
employees and other persons acting in any capacity with regard to the Mortgage
Loans and who 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 and errors
and
omissions insurance 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
Fidelity Bond and insurance policy shall be an amount no less than that which
is
required under the Xxxxxx Xxx Servicing Guide. The Servicer shall notify
the
Owner within five Business Days of receipt of notice that such Fidelity Bond
or
insurance policy will be, or has been, materially modified or
terminated.
25
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Owner or its designee. Any such 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 assume the responsibility for marketing each REO Property
in
accordance with Accepted Servicing Practices. Thereafter, the Servicer shall
continue to provide certain administrative services to the Owner relating
to
such REO Property as set forth in this Section 4.13. The Owner, regardless
of
the form of final disposition of such REO Property, shall pay the Servicer
for
each REO Property that the Servicer markets on behalf of the Owner a fee
equal
to $1500 or one percent (1.0%) of the sale price of such REO Property, whichever
is greater (to be paid first out of the realtor’s commission and then by the
Owner to the extent that the amount of such realtor’s commission is
insufficient), and shall reimburse the Servicer for its reasonable “Direct
Expenses” in connection therewith. Direct Expenses shall mean all out-of-pocket
expenses necessary properly to manage, market, and dispose of an REO Property,
including, repairs, title transfer expenses, advertising expenses, overnight
express parcel services, legal expenses, insurance premiums due, tax
disbursements due, in all cases in connection with such REO Property. The
Servicer shall contract and advance for Direct Expenses and the Owner shall
reimburse the Servicer for the Direct Expenses advanced upon the earlier
of the
following events: (a) upon the closing of the sale of the REO Property if
the
closing occurs within 60 days of the listing and (b) if, at the end of such
60-day period, closing of such sale has not yet occurred, the Owner shall
reimburse the Servicer for such expenses monthly, from the monthly remittance
due to the Owner.
The
Servicer shall, either itself or through an agent selected by the Servicer
in
accordance with Accepted Servicing Practices, manage, conserve, protect and
operate each REO Property. 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 and as are approved in writing by
the
Owner. The REO Disposition Proceeds from the sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter,
the expenses of such sale shall be paid and the Servicer shall reimburse
itself
for any related Servicing Advances.
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 monthly thereafter or more frequently as may be required by the
circumstances. The Servicer shall make or cause the inspector to make 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.
26
Notwithstanding
anything to the contrary set forth in this Section 4.13, the parties hereto
hereby agree that the Owner, at its option, shall be entitled to manage,
conserve, protect and operate each REO Property for its own benefit (such
option, an “REO Option”). In connection with the exercise of an REO Option, the
prior two paragraphs and the related provisions of Section 4.03 and Section
4.04(iii) (such provisions, the “REO Marketing Provisions”) shall be revised as
follows. Following the acquisition of any Mortgaged Property, the Servicer
shall
submit a detailed invoice to the Owner for all related Servicing Advances
and,
upon exercising the REO Option, the Owner shall promptly reimburse the Servicer
for such amounts. In the event the REO Option is exercised with respect to
an
REO Property, Section 4.04 (iii) shall not be applicable thereto. References
made in Section 4.03 with respect to the reimbursement of Servicing Advances
shall, for purposes of such REO Property, be deemed to be covered by this
paragraph. The Owner acknowledges that, in the event it exercises an REO
Option,
with respect to the related REO Property, there shall be no breach by the
Servicer based upon or arising out of the Servicer’s failure to comply with the
REO Marketing Provisions from and after the date on which such REO Option
is
exercised by the Owner.
Section
4.14 Notification
of Adjustments.
With
respect to each Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related electronic data received on
the
Mortgage and Mortgage Note. The Servicer shall execute and deliver any and
all
necessary notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate adjustments.
The
Servicer shall promptly, upon written request by the Owner, deliver to the
Owner
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by the Servicer or the receipt of notice from the Owner that the
Servicer has failed to adjust a Mortgage Interest Rate in accordance with
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 or deferral caused to the Owner thereby. Should it be subsequently
determined that such a failure by the Servicer to adjust the Mortgage Interest
Rate on an ARM Loan in accordance with the terms of the related Mortgage
Note
and Mortgage resulted from or was otherwise caused by incorrect Mortgage
Interest Rate adjustments made prior to the applicable Effective Date or
from or
by the Servicer’s being provided with incorrect data concerning such ARM Loan,
the Owner shall reimburse the Servicer for any deposit into the Custodial
Account related to any interest loss or deferral previously made by the Servicer
to correct the related Mortgagor’s account.
Section
4.15 Superior
Liens
With
respect to each second lien Mortgage Loan, the Servicer shall use reasonable
efforts, consistent with Accepted Servicing Practices and the practices employed
by the Servicer in servicing mortgage loans for its own portfolio, to notify
any
known superior lienholder in writing of the existence of the Mortgage Loan
and
request notification of any action to be taken against the Mortgagor or the
Mortgaged Property by the superior lienholder, and take all other action
required by Accepted Servicing Practices.
27
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, consistent
with
Accepted Servicing Practices, whatever actions are 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 in its reasonable good faith
judgment that such advance will be recoverable from Liquidation Proceeds
on the
related Mortgage Loan. The Servicer shall thereafter take such action as
is
necessary to recover the amount so advanced.
If
the
Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan
on
the related Mortgaged Property, then the Servicer, in such capacity, may
consent
to the refinancing of the prior senior lien, provided that the following
requirements are met and the appropriate documents have been received by
the
Servicer:
(i) such
senior lien secures a mortgage loan that refinances an existing senior lien
and
(A) the outstanding principal amount of the replacement first mortgage loan
immediately following such refinancing is not greater than the outstanding
principal amount of the refinanced senior lien at the date of such refinancing
and (B) the resulting combined loan-to-value ratio of such Mortgage Loan
is no
higher than the combined loan-to-value ratio prior to such refinancing;
(ii) the
interest rate, or, in the case of an adjustable rate existing senior lien,
the
maximum interest rate, for the loan evidencing the refinanced senior lien
is not
higher than the interest rate or the maximum interest rate, as the case may
be,
on the loan evidencing the existing senior lien immediately prior to the
date of
such refinancing;
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative amortization;
(iv) such
refinancing is not a cash-out refinancing;
(v) the
new
senior lien is not a balloon loan, except where the refinanced senior loan
was a
balloon loan;
(vi)
the
original the new senior lien is not greater than the original term of the
prior
senior lien;
(vii) the
monthly payment on the new senior lien is not greater than the monthly payment
of the prior senior lien;
28
(viii) the
debt
to income ratio of the new senior lien is not greater than the debt to income
ratio of the prior senior lien; and
(ix) the
Mortgage Loan must be current prior to consenting to any refinancing of the
senior lien.
ARTICLE
V
PAYMENTS
TO THE OWNER
Section
5.01 Remittances.
On
each
Remittance Date, the Servicer shall remit to the Owner (i) all amounts credited
to the Custodial Account as of the close of business on the related preceding
Determination Date, net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05, minus (ii) any amounts attributable to
Monthly
Payments collected by the Servicer but due on a Due Date or Dates subsequent
to
the last day of the related Due Period, which amounts shall be remitted on
the
related Remittance Date next succeeding the Due Period for such
amounts.
With
respect to any remittance received by the Owner after the Business Day on
which
such payment was due, the Servicer shall pay to the Owner interest on any
such
late payment at an annual rate equal to the Prime Rate, adjusted as of the
date
of each change, plus two percentage points, but in no event greater than
the
maximum amount permitted by applicable law. Such interest shall be deposited
in
the Custodial Account by the Servicer on the date such late payment is made
and
shall cover the period commencing with the day following such Business Day
and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable on the next
succeeding related Remittance Date. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver
of any
Event of Default by the Servicer.
Section
5.02 Statements
to the Owner.
The
Servicer shall furnish to the Owner an individual Mortgage Loan accounting
report (a “Report”), as of the last Business Day of each month, in the
Servicer’s assigned loan number order to document Mortgage Loan payment activity
on an individual Mortgage Loan basis. With respect to each month, such Report
shall be received by the Owner no later than the fifth Business Day of the
month
of the related Remittance Date on a disk or tape or other computer-readable
format, in such format as may be mutually agreed upon by both the Owner and
the
Servicer which Report shall contain the following:
(i) with
respect to each Monthly Payment, the amount of such remittance allocable
to
interest;
(ii) the
amount of servicing compensation received by the Servicer during the prior
distribution period;
29
(iii) the
aggregate Stated Principal Balance of the Mortgage Loans;
(iv) the
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more; (b)
as to
which foreclosure has commenced; and (c) as to which REO Property has been
acquired; and
(v) such
other reports as may reasonably be required by the Owner.
The
Servicer shall also provide with each such Report a trial balance, sorted
in the
Servicer’s assigned loan number order.
The
Servicer shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to the
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 the Owner may reasonably
request from time to time.
In
addition, not more than 60 days after the end of each calendar year, the
Servicer shall furnish to each Person who was an “Owner” at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances of
principal and interest for the applicable portion of such year.
Section
5.03 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Owner pursuant to a deed-in-lieu of foreclosure, the Servicer shall submit
to
the Owner a liquidation report with respect to such Mortgaged Property in
such
form as the Servicer and the Owner shall agree. The Servicer shall also provide
reports on the status of REO Property containing such information as may
reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Assumption
Agreements.
The
Servicer shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of a 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 to the extent permitted by law; provided,
however,
that
the Servicer shall not exercise any such rights if prohibited by law or the
terms of the Mortgage Note from doing so or if the exercise of such rights
would
impair or threaten to impair any recovery under the related Primary Mortgage
Insurance Policy, if any or if the Owner directs the Servicer to not accelerate
the maturity of such Mortgage Loan. 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. If an assumption
is
allowed pursuant to this Section 6.01, the Servicer, with the prior consent
of
the primary mortgage insurer, if any, 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.
30
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures substantially similar
to
those used in connection with the origination of the Mortgage Loan. With
respect
to an assumption or substitution of liability, the Mortgage Interest Rate
borne
by the related Mortgage Note and the amount of the Monthly Payment may not
be
changed. The Servicer shall notify the Owner that any such substitution of
liability or assumption agreement has been completed by forwarding to the
Owner
the original of any such substitution of liability or assumption agreement,
which document shall be added to the related Mortgage Loan Documents and
shall,
for all purposes, be considered a part of such related mortgage file to the
same
extent as all other documents and instruments constituting a part thereof.
All
fees collected by the Servicer for entering into an assumption or substitution
of liability agreement shall belong to the Servicer.
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 6.01, 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
6.02 Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer shall promptly notify
the
Custodian with a certification and request for release by a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited
in
the Custodial Account pursuant to Section 4.04 have been 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 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 at the Owner’s option execute under
the authority of a power of attorney delivered to the Servicer by the Owner
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. The Owner shall, give the Servicer a power of attorney for the limited
purpose of permitting the Servicer to execute in the Owner’s name routine
documents in connection with Mortgage Loan foreclosures, payoff and other
similar purposes; provided, however,
that any
action by any such employee beyond the scope of his/her appointment shall
be
deemed a violation by the Servicer of its obligations hereunder.
31
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 may have under the mortgage instruments,
the Servicer, upon written demand, shall remit to the Owner within two Business
Days the then outstanding principal balance of the related Mortgage Loan
by
deposit thereof in the Custodial Account. The Servicer shall maintain the
Fidelity Bond and errors and omissions insurance 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
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, upon request of the Servicer and delivery (which delivery
may
be electronic) to the Custodian of a servicing receipt signed by a Servicing
Officer, all as provided in the Custodial Agreement, the Servicer may request
the Custodian to release to the Servicer the portion of the Mortgage Loan
Documents held by the Custodian to the Servicer. Such servicing receipt shall
obligate the Servicer to promptly return the related Mortgage Loan Documents
to
the Custodian, 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 such documents
have 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 promptly delivered to
the
Owner or the Custodian a certificate of a Servicing Officer certifying as
to the
name and address of the Person to which such documents were delivered and
the
purpose or purposes of such delivery.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall 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, as
specified in Exhibit D. Additional servicing compensation in the form of
assumption fees, as provided in Section 6.01, and other ancillary fees
(excluding prepayment penalties and late fees on the Mortgage Loans which
shall
be payable to the Owner), as such are specified in Exhibit D, 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
6.04 Annual
Statement as to Compliance; Financial Statements.
The
Servicer shall deliver to the Owner not later than 90 days following the
end of
each fiscal year of the Servicer, beginning March 31, 2006, an Officers’
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officers’ supervision, and (ii) to
the best of such officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout such year,
or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof except for such defaults as such Officers in their good faith judgment
believe to be immaterial.
32
Upon
request by the Owner, the Servicer shall deliver to such requesting party
a copy
of the audited (if such financial statements are available, otherwise unaudited)
financial statements of the Servicer for the most recent fiscal year of the
Servicer.
Section
6.05 Annual
Independent Certified Public Accountants’ Servicing Report.
Not
later
than 90 days following the end of each fiscal year of the Servicer, beginning
March 31, 2006, the Servicer at its expense shall cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Owner 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, 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 6.05, 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
6.06 Owner’s
Right to Examine Servicer Records.
The
Owner
shall have the right to examine and audit, at its expense, upon reasonable
notice to the Servicer, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Servicer, or held by another for
the
Servicer or on its behalf or otherwise, which relate to the performance or
observance by the Servicer of the terms, covenants or conditions of this
Agreement.
The
Servicer shall provide to the Owner and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Owner access to any documentation regarding the Mortgage Loans in the possession
of the Servicer which may be required by any applicable regulations. Such
access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Servicer, and in accordance with
the
applicable federal or state government regulations.
Section
6.07 Non-solicitation.
The
Servicer shall not conduct any solicitation targeted to the Mortgagors for
the
purpose of inducing or encouraging the early prepayment or refinancing of
the
related Mortgage Loans. It is understood and agreed that promotions undertaken
by the Servicer or any agent or affiliate of the Servicer which are directed
to
the general public at large, including mass mailings based on commercially
acquired mailing lists, newspaper, radio and television advertisements or
advertisements on the Servicer’s “VRU” recorded messages and its web page or on
account statements provided to Mortgagors, so long as such advertisements
are
not targeted solely to the Mortgagors of the Mortgage Loans, shall not
constitute solicitation under this Section 6.07.
33
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01 Servicer
Shall Provide Information as Reasonably Required.
The
Servicer shall furnish to the Owner upon request, during the term of this
Agreement, such periodic, special or other reports or information, whether
or
not provided for herein, as shall be necessary, reasonable or appropriate
with
respect to the purposes of this Agreement. The Servicer may negotiate with
the
Owner for a reasonable fee for providing such report or information, unless
(i)
the Servicer is required to supply such report or information pursuant to
any
other section of this Agreement, or (ii) the report or information has been
requested in connection with Internal Revenue Service or other regulatory
agency
requirements. All such reports or information shall be provided by and in
accordance with all reasonable instructions and directions given by the Owner.
The Servicer agrees to execute and deliver all such instruments and take
all
such action as the Owner, from time to time, may reasonably request in order
to
effectuate the purpose and to carry out the terms of this
Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01 Indemnification;
Third Party Claims.
The
Servicer shall indemnify and hold harmless the Owner and its affiliates and
their respective officers, directors, shareholders, employees, agents,
successors and any assigns from, and shall reimburse them for, all Damages
incurred by or asserted against any of such individuals or entities on or
after
the Effective Date which arise out of, or are in connection with or result
from:
(i) any false, inaccurate or untrue representation or warranty made by Servicer
and contained in this Agreement; or (ii) the non-fulfillment or non-performance
of any covenant or obligation of the Servicer contained in this Agreement;
or
(iii) any failure of the Servicer on or after the Effective Date to comply
with
Accepted Servicing Practices for which the Servicer is responsible under
this
Agreement, except to the extent that such failure occurs as a result of the
non-compliance by the Owner with any of its obligations under this Agreement.
Notwithstanding anything contained herein to the contrary, the Servicer’s
obligations of indemnity pursuant to this Section 8.01 shall exclude Damages
to
the extent resulting from or arising out of (i) the failure of any Prior
Servicer to service the loans in accordance with Accepted Servicing Practices
or
(ii) the Owner’s failure to deliver the information required by the Servicer to
service the Mortgage Loans in accordance with the Accepted Servicing Practices.
To the extent that the Servicer has actual knowledge of any failure described
in
(i) and (ii) above, the Servicer shall use all reasonable efforts to give
to
Owner timely notice with respect thereto; provided,
however,
that
failure of the Servicer to give such notice shall not affect the Servicer’s
exclusion from obligations of indemnity set forth in subsections (i) and
(ii) of
this Section 8.01.
For
purposes of indemnification, the representations and warranties of the Servicer
contained in this Agreement shall be deemed to have been made without any
limitation or qualification as to materiality or knowledge with respect to
such
representations and warranties, in each case that are set forth in any such
representation or warranty herein, it being the intention of the parties
that
the Owner shall be indemnified and held harmless from and against any and
all
Damages resulting from the failure of any such representation or warranty
to be
true, correct and complete in any respect or the failure by the Servicer
to duly
and punctually perform any covenant, agreement or undertaking of the Servicer
contained in this Agreement.
34
Section
8.02 Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as
a
corporation (or other entity resulting from merger, conversion or consolidation,
to the extent permitted in this Section 8.01), and will obtain and preserve
its
qualification to do business as a foreign corporation or such other entity
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. Notwithstanding anything
in this Agreement the contrary, the conversion of GMAC Mortgage Corporation's
organizational structure from a Pennsylvania corporation to a Delaware limited
liability company shall not require the consent of any party or notice to
any
party and shall not in any way affect the rights or obligations of GMAC Mortgage
Corporation hereunder.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
or other entity (including without limitation, a limited liability company)
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided,
however,
that
the successor or surviving Person shall be an institution (i) having a GAAP
net
worth of not less than $25,000,000, (ii) the deposits of which are insured
by
the FDIC, or which is a HUD-approved mortgagee whose primary business is
in
origination and servicing of first or second lien 1-4 family mortgage loans,
and
(iii) which is a Xxxxxx Xxx or Xxxxxxx Mac approved seller/servicer in good
standing. No such merger, consolidation, or conversion shall constitute a
breach
by the Servicer of this Agreement.
Section
8.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer
shall
be under any liability to the Owner for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment made in good faith; provided,
however,
that
this provision shall not protect the Servicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
in
any way its obligations in compliance with any standard of care set forth
in
this Agreement, or any liability which would otherwise be imposed by reason
of
negligence or any breach of the terms and conditions of this Agreement. The
Servicer and any officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
the Owner respecting any matters arising hereunder. The Servicer shall not
be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance
with
this Agreement and which in its opinion may involve it in any expenses or
liability; provided,
however,
that
the Servicer may, with the consent of the Owner, undertake any such action
which
it may deem necessary or desirable with respect to this Agreement and the
rights
and duties of the parties hereto. In such event, the reasonable legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Owner will be liable, the Owner
shall reimburse the Servicer within thirty days of receipt by the Owner of
a
billing statement from the Servicer providing reasonable detail with respect
thereto, unless the Owner is disputing such charges in good faith, in which
event the Owner shall reimburse the Servicer as promptly as feasible upon
resolution of such dispute.
35
Section
8.04 Servicer
Not to Resign.
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual consent of the Servicer and
the
Owner or 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 which Opinion of Counsel shall be in form and substance acceptable
to the
Owner. No such resignation shall become effective until a successor shall
have
assumed the Servicer’s responsibilities and obligations hereunder in the manner
provided in Section 12.01.
Section
8.05 No
Transfer of Servicing.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, 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, subject to the provisions of Section 8.02, the Servicer
shall
not either assign this Agreement or the servicing hereunder or delegate its
rights or duties hereunder or any portion thereof, or sell or otherwise dispose
of all or substantially all of its property or assets, without the prior
written
approval of the Owner, which shall not be unreasonably withheld.
Section
8.06 Indemnification
by Owner.
The
Owner
shall indemnify and hold harmless the Servicer and its affiliates and their
respective officers, directors, shareholders, employees, agents, successors
and
any permitted assigns from, and shall reimburse them for, all Damages incurred
by or asserted against any of such individuals or entities on or after the
Effective Date which arise out of, are in connection with or result
from:
(a) any
false, inaccurate or untrue representation or warranty made by Owner and
contained in this Agreement; or
(b) the
non-fulfillment or non-performance of any covenant or obligation of the Owner
contained in this Agreement; or
(c) any
failure of the Owner, the Prior Owner or the Originator to have complied
before
the Effective Date with Accepted Servicing Practices with respect to the
Mortgage Loans; or
36
(d) the
Servicer’s compliance with written instructions of Owner to the extent that such
instructions are not in compliance with Accepted Servicing Practices;
or
(e) any
Recourse Obligation except to the extent that the requirement to pay or perform
in respect of such Recourse Obligation results from the Servicer’s breach of
Accepted Servicing Practices or the Servicer’s breach of any of its obligations
under this Agreement; or
(f) any
outstanding Servicing Advance as to which the Servicer is not reimbursed
by the
Mortgagor or from liquidation proceeds following the Foreclosure of the Mortgage
Loan and the sale or conveyance of the related REO, unless resulting from
the
Servicer’s breach of Accepted Servicing Practices or the Servicer’s obligations
under this Agreement; or
(g) errors
in
the adjustment, after the Effective Date but prior to the completion by the
Servicer of an ARM Loan audit with respect to such ARM Loan, of the interest
rate or payments on an ARM Loan to the extent arising out of an incorrect
adjustment of such interest rate or payments prior to the Effective Date;
or
(h) the
continuation by the Servicer of the past practices of the Owner or the Prior
Servicer with respect to the analysis of any escrow account for a Mortgage
Loan
or the reporting to Mortgagors of the appropriate balances thereof, until
the
date of the first analysis of such escrow account that is required to be
performed under applicable law after the Effective Date (it being agreed
that
the foregoing indemnification shall not apply with respect to any failure
by the
Servicer to timely or properly disburse (or request or direct the disbursement
of) funds from any such escrow account); or
(i) any
act
or omission or other event or circumstance to the extent occurring or arising
prior to the Effective Date and related to the origination, purchase, sale,
securitization or servicing of the Mortgage Loans; or
(j) any
failure of the Servicer to comply with Accepted Servicing Practices or the
requirements of this Agreement as a result of there being any incomplete
or
missing Mortgage Loan Documents as of the Effective Date; or
(k) any
Litigation commenced against the Servicer after the Effective Date as a result
of Servicer’s acting as, or status as, the Servicer of the Mortgage Loans
hereunder, to the extent that such Litigation does not arise out of or result
from the Servicer’s breach of any provision of this Agreement; provided that
such indemnification shall not include Damages arising out, relating to or
resulting from Litigation that pertains to (i) any actual or alleged contract
dispute between the Servicer and a Person retained by the Servicer to perform
servicing-related activities on its behalf, employment-related suits by the
Servicer personnel, any tortious acts or omissions, or (ii) the Servicer’s
relationships with any of its affiliates, officers, directors, employees,
agents, contractors, vendors, suppliers or visitors (other than the
Owner).
For
purposes of indemnification, the representations and warranties of the Owner
contained in this Agreement shall be deemed to have been made without any
limitation or qualification as to materiality or knowledge with respect to
such
representations and warranties, in each case that are set forth in any such
representation or warranty herein, it being the intention of the parties
that
the Servicer shall be indemnified and held harmless from and against any
and all
Damages resulting from the failure of any such representation or warranty
to be
true, correct and complete in any respect or the failure by the Owner to
duly
and punctually perform any covenant, agreement or undertaking of the Owner
contained in this Agreement.
37
Section
8.07 Notice
of Settlement and Claims.
For
purposes of administering the indemnification provisions of Section 8.01
and
8.06, the following procedures shall apply from and after the Effective
Date:
(a) A
party
that may be entitled, or may thereafter seek, to assert a claim against the
other party (an “indemnified party”) for indemnification hereunder with respect
to an any event, action, proceeding or claim for which a Person is entitled
to
Indemnification under this Agreement (an “Indemnification Event”) shall notify
such other party (a “potential indemnitor”) of any Indemnification Event in
writing within the earlier of fifteen (15) days following the receipt of
notice
of the commencement of any Litigation giving rise to such indemnification
hereunder (“Subject Litigation”) or within thirty (30) days of (A) the assertion
of any claim against such indemnified party or (B) the discovery by such
indemnified party of any Damages that may give rise to indemnity pursuant
to
Section 8.01 or 8.06 (any fifteen (15) or thirty (30) day notification
requirement shall begin to run, in the case of a claim which is amended so
as to
give rise to an amended Indemnification Event, from the first day such claim
is
amended to include any claim which is an Indemnification Event hereunder)
such
notice to describe in reasonable detail the basis of such Indemnification
Event.
The failure to give notice as required by this Section 8.07 in a timely
fashion shall not result in a waiver of any right to indemnification hereunder
except to the extent that the potential indemnitor’s ability to defend against
the event with respect to which indemnification is sought is adversely affected
by the failure of the indemnified party to give notice in a timely fashion
as
required by this Section 8.07.
(b) Except
as
set forth below, the potential indemnitor shall be entitled (but not obligated)
to assume the exclusive defense or settlement of any such Subject Litigation,
or
to participate in any negotiations or proceedings to settle or otherwise
eliminate any claim, if it shall elect to do so by written notice to the
indemnified parties at any time prior to fifteen (15) Business Days after
its
receipt of the notification with respect thereto referred to above. If the
potential indemnitor assumes any such defense, settlement or negotiations,
it
shall pursue such defense, settlement or negotiations in good faith. If the
potential indemnitor fails to so elect in writing to assume the defense,
the
indemnified party may engage counsel to defend, settle or otherwise dispose
of
such Subject Litigation, which counsel shall be reasonably satisfactory to
the
potential indemnitor; provided
that the
indemnified party shall pursue such defense in good faith and shall not settle
or compromise any such Subject Litigation or claim without the consent of
the
potential indemnitor. The assumption by a potential indemnitor of the defense,
settlement or negotiations with respect to any Subject Litigation against
the
other party shall not be deemed to be an admission by such potential indemnitor
as to any liability for indemnification hereunder with respect
thereto.
(c) In
cases
where the potential indemnitor does not assume the exclusive defense of any
Subject Litigation against the other party, such other party shall (i) use
counsel reasonably acceptable to the potential indemnitor and afford the
potential indemnitor a right to veto, in its reasonable discretion, counsel
selected by the indemnified party, (ii) conduct the litigation in the same
manner as it would if indemnification from the other party were not available
(e.g., manage costs in a prudent manner and appropriately allocate costs
between
litigation involving indemnified claims and litigation involving similar
claims
not subject to indemnification), (iii) permit the potential indemnitor to
participate fully in the Subject Litigation with representation by counsel
of
its choosing, consult with the potential indemnitor with respect to the conduct
of the Subject Litigation, provide periodic reports to the potential indemnitor
and give “due consideration” to the potential indemnitor’s views on litigation
strategy plans, legal fees, and settlement options, and other matters related
to
such Subject Litigation, (iv) not oppose a motion by the potential indemnitor
to
intervene and participate as an interested party in Subject Litigation that
is
or may be subject to indemnification by the potential indemnitor (it being
agreed that the potential indemnitor would be free to control its activities
in
connection with such intervention, notwithstanding control of the defense
of
such Subject Litigation by the other party). Provided that the other party
enters into a customary and appropriate tolling agreement with respect thereto,
neither party shall (x) assert in any such Subject Litigation cross-claims
against the other party for indemnification hereunder or (y) commence Subject
Litigation against the other party seeking to establish its right to
indemnification hereunder with respect to such Subject Litigation (or seeking
to
collect such indemnification) until completion of the underlying Subject
Litigation.
38
(d) In
cases
where the potential indemnitor has assumed the defense or settlement of any
Subject Litigation with respect to an Indemnification Event, the potential
indemnitor shall be entitled to exclusively assume the defense or settlement
thereof with counsel of its own choosing, provided that: (i) the indemnified
party (and its counsel) shall be entitled to continue to participate fully,
at
its own cost and expense, in any such Subject Litigation or in any negotiations
or proceedings to settle or otherwise eliminate any claim for which
indemnification is being sought (and in connection therewith, the potential
indemnitor shall consult with the indemnified party with respect to the conduct
of the Subject Litigation, provide periodic reports to the indemnified party
and
give “due consideration” to the indemnified party’s views on matters with
respect to such Subject Litigation); (ii) the potential indemnitor shall
not be
entitled to settle or compromise any such Subject Litigation without the
consent
or agreement of the indemnified party (which consent shall not be unreasonably
withheld or delayed), provided that if such consent is withheld, the potential
indemnitor’s liability shall be limited to the amount for which the potential
indemnitor agreed with the claimant to settle and the potential indemnitor
shall
remain responsible for its costs and attorneys’ fees to the date such settlement
was rejected by the indemnified party and the indemnified party shall be
responsible for the costs and attorneys’ fees in respect of such claim
thereafter; and (iii) after written notice by the potential indemnitor to
the
indemnified party of its election to assume control of the defense of any
such
Subject Litigation, the potential indemnitor shall not be liable to such
indemnified party hereunder for any attorneys’ fees and disbursements
subsequently incurred by such indemnified party in connection
therewith.
(e) In
the
event indemnification with respect to any Subject Litigation is requested,
the
party that has assumed or retained the right to defend such Litigation, its
representatives and agents shall have access to the premises, books and records
of the other party and its Affiliates, and such other party and its affiliates
shall cooperate with the party defending such Subject Litigation, to the
extent
reasonably necessary or appropriate to assist such party in defending or
settling any such Subject Litigation; provided,
however,
that
such access shall be conducted in such manner as not to interfere unreasonably
with the operation of the business of such other party and its
affiliates.
39
(f) With
respect to any disputes between the parties relating to any indemnification
obligations under this Agreement or the conduct or management of any Subject
Litigation hereunder, such dispute shall be heard by any court of competent
jurisdiction. The parties agree, to the extent permitted by law, that final
and
unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment,
a
certified copy of which shall be conclusive evidence of the fact and amount
of
such judgment.
Section
8.08 Limitation
on Liability of Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer
shall
be under any liability to Owner for any action taken or for refraining from
the
taking of any action in good faith pursuant to this Agreement, or for errors
in
judgment; provided, however, that this provision shall not protect the Servicer
or any such person against any breach of warranties or representations made
herein, or failure to perform its obligations in compliance with any standards
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.
Section
8.09 Survival.
The
rights of indemnification set forth in Section 8.01 and 8.06, and all
representations and warranties of the parties set forth in this Agreement,
shall
survive the execution and termination of this Agreement.
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
The
occurrence of any of the following shall constitute an event of default
hereunder (“Event of Default”):
(a) on
the
part of the Servicer (a “Servicer Event of Default”):
(i) any
failure by the Servicer to remit to the Owner any payment required to be
made
under the terms of this Agreement which continues unremedied for a period
of two
(2) Business Days after written notice thereof (it being understood that
this
subparagraph shall not affect Servicer’s obligation pursuant to Section 5.01 to
pay default interest on any remittance received by the Owner after the Business
Day on which such payment was due); or
(ii) any
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, the breach of which has a material adverse effect
and
which continue unremedied for a period of sixty 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 and such
failure
shall be deemed to have a material adverse effect) 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
40
(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, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Servicer 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, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(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) 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 as otherwise permitted herein;
or
(vii) the
Servicer ceases to be qualified to transact business in any jurisdiction
where
it is currently so qualified, but only to the extent such non-qualification
materially and adversely affects the Servicer’s ability to perform its
obligations hereunder.
(b) On
the
part of the Owner (an “Owner Event of Default”), if:
(i) The
Owner
shall (a) fail to comply in any material respect with the covenants and
agreements applicable to it under this Agreement, or (b) breach in any material
respect any of the representations or warranties set forth herein that are
made
by it in either case, other than as a result of Servicer’s acts or omissions,
that, in either case, is not cured within any applicable cure period contained
in herein; or
(ii) an
insolvency, bankruptcy or similar proceeding shall have been commenced with
respect to the Owner, or a decree or order of an appropriate court, agency
or
supervisory authority for the appointment of a conservator, receiver or
liquidator shall have been entered against the Owner and such decree or order
is
not vacated or such proceeding is not dismissed within sixty (60) days
thereafter.
(c) Without
limiting the rights of any party under Article 8 hereof, a party shall have
three (3) Business Days following a breach of the obligation to pay amounts
due
hereunder or sixty (60) calendar days following the occurrence of any other
breach or failure to perform referred to in Section 8.01(a)(ii) or Section
8.02(b)(i), to cure or correct such breach or failure, assuming such breach
or
failure is reasonably capable of cure, in the reasonable judgment of the
non-defaulting party, which sixty (60) day period shall be extended for an
additional thirty (30) day period if, in the reasonable judgment of the
non-defaulting party, such default is capable of prompt cure, and appropriate
corrective action is instituted by the defaulting Party within the initial
sixty
(60) day period and the defaulting party diligently pursues such
cure.
41
Section
9.02 Waiver
of Defaults.
The
Owner
or the Servicer may waive only by written notice any default by the other
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 in writing.
ARTICLE
X
TERMINATION
Section
10.01 Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon
the earliest to occur of the following: (i) the later of the final payment
or
other liquidation of the last Mortgage Loan and the disposition of all REO
Property and the remittance of all funds due hereunder; (ii) 30 days’ written
notice from the Owner to the Servicer, (iii) 60 days’ written notice from the
Servicer to the Owner, and (iv) mutual consent of the Servicer and the Owner
in
writing or as provided in Section 10.02. Simultaneously with any such
termination and the transfer of servicing hereunder, the Servicer shall be
entitled to be reimbursed for any outstanding Servicing Advances (net of
any
amounts owed by the Servicer to the Owner hereunder). In no event shall the
Servicer be entitled to any termination fee or other compensation with respect
to any termination of this Agreement or the Servicer’s rights hereunder, in
whole or in part.
Section
10.02 Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Whole Loan
Transfer.
The
Owner
and the Servicer agree that with respect to some or all of the Mortgage Loans,
the Owner, at its sole option, may effect Whole Loan Transfers retaining
the
Servicer as the Servicer thereof or subservicer if a master Servicer is
employed, or as applicable the “Servicer”. At the election of the Owner, from
and after the Reconstitution Date, the Mortgage Loans transferred shall remain
covered by this Agreement, insofar as the Servicer shall continue to service
such Mortgage Loans on behalf of the Owner in accordance with the terms and
provisions of this Agreement or shall be subject to a pooling and servicing
agreement or a subservicing agreement containing customary secondary market
servicing provisions with respect to mortgage loans that are subject to a
rated
mortgage loan securitization, including without limitation, the provisions
specified in paragraph (e) below. In the event that the Owner elects not
to
retain the Servicer as Servicer subsequent to a Whole Loan Transfer or in
the
event that the Owner effects a pass-through transfer with respect to the
Mortgage Loans, the Owner may terminate the Servicer as Servicer without
regard
to the 30-day notice requirement; provided, however, that the Servicer shall
be
given adequate notice to meet the requirements of applicable federal, state
and
local laws and regulations concerning transfers.
42
The
Servicer shall cooperate with the Owner in connection with each Whole Loan
Transfer in accordance with this Section 10.02. In connection therewith the
Servicer shall:
(a) make
all
representations and warranties with respect to the servicing practices of
the
Servicer concerning the Mortgage Loans and with respect to the Servicer itself
as of the Reconstitution Date of the related Whole Loan Transfer;
(b) negotiate
in good faith and execute any seller/servicer agreements required by the
shelf
registrant to effectuate the foregoing provided such agreements create no
greater obligation or cost on the part of the Servicer than otherwise set
forth
in this Agreement;
(c) provide
as applicable:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Servicer, whether through letters of its auditors
and counsel or otherwise, as the Owner shall request; and
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, financial description of the Servicer as Servicer and
certificates of public officials or officers of the Servicer as are reasonably
believed necessary by any Rating Agency, or the Owner, as the case may be,
in
connection with such Whole Loan Transfers. The Owner shall pay all third
party
costs associated with the preparation of such information. The Servicer shall
execute any Servicer agreements required within a reasonable period of time
after receipt of such Servicer agreements which time shall be sufficient
for the
Servicer and Servicer’s counsel to review such Servicer agreements. In the event
that the Servicer’s obligations under any such Servicer agreement are
substantially identical to its obligations hereunder, the Servicer’s
compensation thereunder shall be identical to the Servicer’s compensation
hereunder with respect to the related Mortgage Loans. If the obligations
of the
Servicer under such Servicer agreement are not substantially identical, the
servicing compensation shall be as agreed between the parties.
(iii) indemnify
the Owner for any material misstatements contained in the information provided
pursuant to (c) above.
In
the
event the Owner has elected to have the Servicer hold record title to the
Mortgages, prior to the Reconstitution Date the Servicer shall prepare an
assignment in blank or, at the option of the Owner, to the trustee from the
Servicer acceptable to the Trustee for each Mortgage Loan that is part of
the
Whole Loan Transfers. The Owner shall pay all preparation and recording costs
associated therewith. The Servicer shall execute each assignment, track such
assignments to ensure they have been recorded and deliver them as required
by
the trustee upon the Servicer’s receipt thereof. Additionally, the Servicer
shall prepare and execute, at the direction and expense of the Owner, any
note
endorsements in connection with any and all seller/servicer
agreements.
43
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer
shall
remain 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.
Section
10.03 Transfer
of Servicing for Defaulted Loans.
The
Owner
shall have the option, exercisable in its sole discretion and upon reasonable
written notice to the Servicer, to transfer to a third-party Servicer any
Mortgage Loan that is more than sixty (60) days delinquent with respect to
Monthly Payments. Upon such transfer, the Owner will reimburse the Servicer
for
all unreimbursed Servicing Advances with respect to such Mortgage Loan and
the
reasonable costs and expenses incurred by the Servicer in connection with
the
transfer of servicing with respect to such Mortgage Loan.
Section
10.04 Transfer
of Books and Records.
All
books, records, documents, files, and other information and data in the
Servicer’s possession, pertaining to the Mortgage Loans, including all
documents, records and reports relating to any pool in which any applicable
Mortgage Loans are contained from the inception of the pool, or upon transfer
of
the servicing of any portion of the Mortgage Loans, are and shall at all
times
remain the property of the Owner. Upon termination of this Agreement with
respect to one or more Mortgage Loans, subject to and in accordance with
Accepted Servicing Practices, the Servicer shall transfer in accordance with
the
Owner’s and any transferee Servicer’s reasonable instructions at the Owner’s
expense (or at the Servicer’s expense if this Agreement is terminated following
a Servicer Event of Default), to the Owner or a designee of the Owner, the
records held by the Servicer. The Servicer shall also, following termination
of
this Agreement with respect to all or any portion of the servicing, account
for
and turn over to the Owner all related funds collected and held by the Servicer
for the Owner, which funds are the property of the Owner, net of all accrued
but
unpaid Servicing Fees and outstanding Servicing Advances and any other amounts
payable to the Servicer under the terms of this Agreement (after deduction
therefrom of any amounts owed to the Owner by the Servicer
hereunder).
ARTICLE
XI
COMPLIANCE
WITH REGULATION AB
Section
11.01 Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that the purpose of Article XI of
this
Agreement is to facilitate compliance by the Owner and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Because Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act and
there
are market uncertainties with respect to the disclosure that investors in
privately offered securities may request, the parties agree over time to
negotiate in good faith with respect to the provision of comparable disclosure
in private offerings.
44
Neither
the Owner nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder.
The
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply
with
requests made by the Owner or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Securitization Transaction, the Servicer
shall cooperate fully with the Owner to deliver to the Owner (including any
of
its assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Owner or any Depositor to permit the Owner or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Servicer, any Subservicer, and the Mortgage Loans,
or the servicing of the Mortgage Loans, reasonably believed by the Owner
or any
Depositor to be necessary in order to effect such compliance.
The
Owner
(including any of its assignees or designees) shall cooperate with the Servicer
by providing timely notice of requests for information under these provisions
and by reasonably limiting such requests to information required, in the
Owner’s
reasonable judgment, to comply with Regulation AB.
Section
11.02 Additional
Representations and Warranties of the Servicer.
(a) The
Servicer shall be deemed to represent to the Owner, to any Master Servicer
and
to any Depositor, as of the date on which information is first provided to
the
Owner or any Depositor under Section 11.03 that, except as disclosed in writing
to the Owner or such Depositor prior to such date: (i) the Servicer is not
aware
and has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization
due to
any act or failure to act of the Servicer; (ii) the Servicer has not been
terminated as servicer in a residential mortgage loan securitization, either
due
to a servicing default or to application of a servicing performance test
or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Servicer as servicer has been disclosed or reported by the Servicer;
(iv) no
material changes to the Servicer’s policies or procedures with respect to the
servicing function it will perform under this Agreement and any Securitization
Transaction for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Servicer’s financial
condition that could have a material adverse effect on the performance by
the
Servicer of its servicing obligations under this Agreement or any Securitization
Transaction; (vi) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer or any Subservicer
;
and (vii) there are no affiliations, relationships or transactions relating
to
the Servicer or any Subservicer with respect to any Securitization Transaction
and any party thereto identified by the related Depositor of a type described
in
Item 1119 of Regulation AB.
45
(b) If
so
requested by the Owner or any Depositor on any date following the
date
on which information is first provided to the Owner or any Depositor under
Section 11.03,
the
Servicer shall make best reasonable efforts within five (5) Business Days
but in
no event later than ten (10) Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty
is not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
Section
11.03 Information
to Be Provided by the Servicer.
In
connection with any Securitization Transaction the Servicer shall (1) make
best
reasonable efforts within five (5) Business Days but in no event later than
ten
(10) Business Days following request by the Owner or any Depositor, provide
to
the Owner and such Depositor (or, as applicable, cause each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to
the
Owner and such Depositor, the information and materials specified in paragraphs
(a), (b), (c) and (g) of this Section, and (ii) as promptly as practicable
following notice to or discovery by the Servicer, provide to the Owner and
any
Depositor (in writing and in form and substance reasonably satisfactory to
the
Owner and such Depositor) the information specified in paragraph (d) of this
Section.
(a) [Reserved]
(b) [Reserved]
(c) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a “Regulation AB Servicer”), as is requested for the purpose of
compliance with Items 1108, 1117 and 1119 of Regulation AB provided, however,
that the Servicer need not provide such information if such information was
previously delivered to the Owner or any Depositor and such information has
not
changed since such prior delivery. Such information shall include, at a
minimum:
(A) the
Regulation AB Servicer’s form of organization;
(B) a
description of how long the Regulation AB Servicer has been servicing
residential mortgage loans; a general discussion of the Regulation AB Servicer’s
experience in servicing assets of any type as well as a more detailed discussion
of the Regulation AB Servicer’s experience in, and procedures for, the servicing
function it will perform under this Agreement and any Securitization
Transactions; information regarding the size, composition and growth of the
Regulation AB Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the
Regulation AB Servicer that may be material, in the good faith judgment of
the
Owner or any Depositor, to any analysis of the servicing of the Mortgage
Loans
or the related asset-backed securities, as applicable, including, without
limitation:
|
(1)
|
whether
any prior securitizations of mortgage loans of a type similar to
the
Mortgage Loans involving the Regulation AB Servicer have defaulted
or
experienced an early amortization or other performance triggering
event
because of servicing during the three-year period immediately preceding
the related Securitization
Transaction;
|
46
|
(2)
|
the
extent of outsourcing the Regulation AB Servicer
utilizes;
|
|
(3)
|
whether
there has been previous disclosure of material noncompliance with
the
applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Regulation AB Servicer
as a
servicer during the three-year period immediately preceding the
related
Securitization Transaction;
|
|
(4)
|
whether
the Regulation AB Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger;
and
|
|
(5)
|
such
other information as the Owner or any Depositor may reasonably
request for
the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
|
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Regulation AB Servicer’s
policies or procedures with respect to the servicing function it will perform
under this Agreement and any Securitization Transactions for mortgage loans
of a
type similar to the Mortgage Loans;
(D) information
regarding the Regulation AB Servicer’s financial condition, to the extent that
there is a material risk that an adverse financial event or circumstance
involving the Regulation AB Servicer could have a material adverse effect
on the
performance by the Servicer of its servicing obligations under this Agreement
or
any Securitization Transaction;
(E) information
regarding advances made by the Regulation AB Servicer on the Mortgage Loans
and
the Regulation AB Servicer’s overall servicing portfolio of residential mortgage
loans for the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized officer
of the
Regulation AB Servicer to the effect that the Regulation AB Servicer has
made
all advances required to be made on residential mortgage loans serviced by
it
during such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required, and the
reasons for such failure to advance;
(F) a
description of the Regulation AB Servicer’s processes and procedures designed to
address any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
(G) a
description of the Regulation AB Servicer’s processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through liquidation
of mortgaged properties, sale of defaulted mortgage loans or
workouts;
47
(H) information
as to how the Regulation AB Servicer defines or determines delinquencies
and
charge-offs, including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience;
(I) a
description of any material legal or governmental proceedings pending (or
known
to be contemplated) against the Regulation AB Servicer; and
(J) a
description of any affiliation or relationship between the Regulation AB
Servicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Regulation AB Servicer by the Owner or
any
Depositor in writing in advance of such Securitization Transaction:
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
|
(9)
|
any
other material transaction party.
|
(d) For
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Servicer shall (or shall
cause each Subservicer to) (i) notify the Owner, any Master Servicer and
any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Servicer or any Subservicer, (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Servicer or any Subservicer and any of the parties
specified in clause (J) of paragraph (c) of this Section (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Securitization Transaction, (D) any merger, consolidation
or
sale of substantially all of the assets of the Servicer, and (E) the Servicer’s
entry into an agreement with a Subservicer or Subcontractor to perform or
assist
in the performance of any of the Servicer’s obligations under this Agreement or
any Securitization Transaction and (ii) provide to the Owner and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Securitization Transaction by any
Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner and any Depositor, at
least
15 calendar days prior to the effective date of such succession or appointment,
(x) written notice to the Owner and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Owner and such Depositor, all information reasonably requested by
the
Owner or any Depositor in order to comply with its reporting obligation under
Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
48
(f) Notwithstanding
anything in this Article XI to the contrary, the Servicer shall be under
no
obligation to provide any information that he Owner or any Depositor deem
required under Regulation AB if (i) the Servicer does not believe that such
information is required under Regulation AB and (ii) the Servicer is not
providing such information for securitizations on its own shelf registration
on
Form S-3 (or any shelf registration on Form S-3 of any of its affiliates
relating to the same asset type) unless either the Owner or such Depositor
pays
all reasonable incremental costs incurred by the Servicer in connection with
the
preparation and delivery of such information. The Servicer shall deliver
any
such information prepared pursuant to the prior sentence within 15 days of
such
written request, if such information is quantitative information set forth
on,
or which may be derived from, information in the Servicer's databases, or
otherwise within a commercially reasonable time taking into account the time
required to implement the necessary systems and procedures to produce such
information.
(g) In
addition to such information as the Servicer, as Servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Securitization Transaction that includes any of the Mortgage
Loans serviced by the Servicer or any Subservicer, the Servicer or such
Subservicer, as applicable, shall provide to the party responsible for filing
such report (including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all information, data,
and
materials related thereto as may be required to be included in the related
distribution report on Form 10-D (as specified in the provisions of Regulation
AB referenced below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(h) The
Servicer shall provide to the Owner, any Master Servicer and any Depositor,
such
additional information as such party may reasonably request, including evidence
of the authorization of the person signing any certification or statement,
financial information and reports, and such other information related to
the
Servicer or any Subservicer or the Servicer or such Subservicer’s performance
hereunder.
49
Section
11.04 Regulation
AB Servicer Compliance Statement.
The
Servicer shall make reasonable best efforts by March 1, but in no event later
than March 15, of each calendar year, commencing in 2007, to deliver to the
Owner, any Master Servicer and any Depositor a statement of compliance addressed
to the Owner and such Depositor and signed by an authorized officer of the
Servicer, to the effect that (i) a review of the Servicer’s activities during
the immediately preceding calendar year (or applicable portion thereof) and
of
its performance under this Agreement and any applicable Securitization
Transaction during such period has been made under such officer’s supervision,
and (ii) to the best of such officers’ knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Agreement and any
applicable Securitization Transaction in all material respects throughout
such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status
thereof.
Section
11.05 Report
on Assessment of Compliance and Attestation.
(a) Using
reasonable best efforts on or before March 1, but in no event later than
March
15, of each calendar year, commencing in 2007, the Servicer shall:
(i) deliver
to the Owner, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Owner and such Depositor) regarding
the
Servicer’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Owner and such Depositor and signed by an authorized officer
of
the Servicer, and shall address each of the “Applicable Servicing Criteria”
specified on a certification substantially in the form of Exhibit F
hereto;
(ii) deliver
to the Owner, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Owner, such Master Servicer
and such Depositor that attests to, and reports on, the assessment of compliance
made by the Servicer and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB (each, a
“Participating Entity”), to deliver to the Owner, any Master Servicer and any
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (a) and (b) of this Section and, to the extent required
of such Subservicer or such Subcontractor under Item 1123 of Regulation AB,
an
annual compliance certification as and when required under Section 11.04;
and
(iv) if
requested by the Owner, any Master Servicer or any Depositor not later than
March 15 of the calendar year in which such certification is to be delivered,
deliver, and cause each Participating Entity to deliver, to the Owner, any
Depositor, any Master Servicer and any other Person that will be responsible
for
signing the certification (a “Sarbanes Certification”) required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of
the
Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect
to
a Securitization Transaction a certification, signed by the appropriate officer
of the Servicer, in the form attached hereto as Exhibit F. The Owner shall
provide any request under this paragraph at least ten (10) Business Days
prior
to March 15.
50
The
Servicer acknowledges that the parties identified in clause (a)(iv) above
may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Owner nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor or Master Servicer is required under
the
Exchange Act to file an annual report on Form 10-K with respect to an issuing
entity whose asset pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
11.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit G hereto delivered to
the
Owner concurrently with the execution of this Agreement or, in the case of
a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 11.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Section 11.06. No
such
assessment shall be filed with any public agency without the consent of the
Servicer.
Section
11.06 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Securitization Transaction unless the Servicer complies with the
provisions of paragraph (a) of this Section. The Servicer shall not hire
or
otherwise utilize the services of any Subcontractor, and shall not permit
any
Subservicer to hire or otherwise utilize the services of any Subcontractor,
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Securitization Transaction unless the Servicer complies with the
provisions of paragraph (b) of this Section.
(a) It
shall
not be necessary for the Servicer to seek the consent of the Owner or any
Depositor to the utilization of any Subservicer. The Servicer shall cause
any
Subservicer used by the Servicer (or by any Subservicer) for the benefit
of the
Owner and any Depositor to comply with the provisions of this Section and
with
Sections 11.02, 11.03(c), (e), (f) and (g), 11.04, 11.05 and 11.07 of this
Agreement to the same extent as if such Subservicer were the Servicer, and
to
provide the information required with respect to such Subservicer under Section
11.03(d) of this Agreement. The Servicer shall be responsible for obtaining
from
each Subservicer and delivering to the Owner and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
11.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 11.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 11.05 as and when required to be
delivered.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Owner, any Master
Servicer or any Depositor to the utilization of any Subcontractor. The Servicer
shall promptly upon request provide to the Owner, any Master Servicer and
any
Depositor (or any designee of the Depositor, such as an administrator) a
written
description (in form and substance satisfactory to the Owner, such Depositor
and
such Master Servicer) of the role and function of each Subcontractor utilized
by
the Servicer or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) each discrete function identified in Item 1122(d) of
Regulation AB which is being performed by each such Subcontractor (iii) which
(if any) of such Subcontractors are “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, and (iv) which elements
of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each Subcontractor identified pursuant to clause (iii) of this
paragraph.
51
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 11.05 and 11.07 of this Agreement
to
the same extent as if such Subcontractor were the Servicer. The Servicer
shall
be responsible for obtaining from each Subcontractor and delivering to the
Owner
and any Depositor any assessment of compliance and attestation and the other
certifications required to be delivered by such Subcontractor under Section
11.05, in each case as and when required to be delivered.
Section
11.07 Indemnification;
Remedies.
(a) The
Servicer shall indemnify the Owner, each affiliate of the Owner, and each
of the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; each Person (including, but not limited to, any Master
Servicer if applicable) responsible for the preparation, execution or filing
of
any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties
or the
Depositor (within the meaning of Section 15 of the Securities Act and Section
20
of the Exchange Act); and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing and of the Depositor
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, data, accountants’ letter or other material
provided in written or electronic form under this Article XI by or on behalf
of
the Servicer, or provided under this Article XI by or on behalf of any
Subservicer or Subcontractor (collectively, the “Servicer Information”), or (B)
the omission or alleged omission to state in the Servicer Information a material
fact required to be stated in the Servicer Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided, by way of clarification, that clause
(B) of
this paragraph shall be construed solely by reference to the Servicer
Information and not to any other information communicated in connection with
a
sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
52
(ii) any
breach by the Servicer of its obligations under this Article XI, including
particularly any failure by the Servicer, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article XI, including any failure
by
the Servicer to identify pursuant to Section 11.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
11.02(a) or in a writing furnished pursuant to Section 11.02(b) and made
as of a
date prior to the closing date of the related Securitization Transaction,
to the
extent that such breach is not cured by such closing date, or any breach
by the
Servicer of a representation or warranty in a writing furnished pursuant
to
Section 11.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith or willful misconduct of the Servicer in connection
with
its performance under this Article XI.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Servicer agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
For
any
indemnification from the Servicer to any Indemnified Party, the Servicer
in no
event will be liable for punitive damages or lost profits, regardless of
the
form of action, whether in contract, tort or otherwise, except that to the
extent any Indemnified Party is ordered by a court to pay punitive damages
or
lost profits, the Servicer shall be liable.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Servicer shall promptly reimburse the Owner, any Depositor, as applicable,
and each Person responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Servicer, any Subservicer
or
any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
In
connection with any Securitization Transaction in which the Servicer is a
named party and provides servicing information, the Owner agrees
to execute a separate indemnification agreement in which the Owner shall
agree to indemnify and hold harmless the Servicer against any and all
losses, claims, damages and liabilities arising from any untrue statement
of a
material fact provided by or on behalf of the Owner and contained in any
related offering documents.
53
(b) (i)
Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any
information, report, certification, accountants’ letter or other material when
and as required under this Article XI, or any breach by the Servicer of a
representation or warranty set forth in Section 11.02(a) or in a writing
furnished pursuant to Section 11.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Servicer of
a
representation or warranty in a writing furnished pursuant to Section 11.02(b)
to the extent made as of a date subsequent to such closing date, shall, except
as provided in clause (ii) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Servicer under this Agreement and any applicable Securitization Transaction,
and shall entitle the Owner, any Master Servicer or any Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Servicer as servicer under this Agreement and/or any applicable
Securitization Transaction without payment (notwithstanding anything in this
Agreement or any applicable Securitization Transaction to the contrary) of
any
compensation to the Servicer and if the Regulation AB Servicer is servicing
any
of the Mortgage Loans in a Securitization Transaction, appoint a successor
servicer reasonably acceptable to any Master Servicer of such Securitization
Transaction; provided that to the extent that any provision of this Agreement
and/or any applicable Securitization Transaction expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
(i) Any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 11.04 or 11.05, including (except as provided below) any failure
by the Servicer to identify pursuant to Section 11.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten calendar days after the
date
on which such information, report, certification or accountants’ letter was
required to be delivered shall constitute an Event of Default with respect
to
the Servicer under this Agreement and any applicable Securitization Transaction,
and shall entitle the Owner, any Master Servicer or any Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Servicer as servicer under this Agreement and/or any applicable
Securitization Transaction without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Servicer; provided
that to
the extent that any provision of this Agreement and/or any applicable
Securitization Transaction expressly provides for the survival of certain
rights
or obligations following termination of the Servicer as servicer, such provision
shall be given effect.
None
of
the Owner, any Master Servicer nor any Depositor shall be entitled to terminate
the rights and obligations of the Servicer pursuant to this subparagraph
(b)(ii)
if a failure of the Servicer to identify a Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(ii) The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer
and the
transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Owner or
any
Depositor may have under other provisions of this Agreement and/or any
applicable Securitization Transaction or otherwise, whether in equity or
at law,
such as an action for damages, specific performance or injunctive
relief.
54
Section
11.08 Third
Party Beneficiary.
For
purposes of this Article XI and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
this Agreement.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to the Servicer.
Upon
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Sections 8.04, 10.01(ii) or (iii) or 10.03, 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 having the
characteristics set forth in Section 8.02 hereof and which shall succeed
to all
rights and assume all of the responsibilities, duties and liabilities of
the
Servicer under this Agreement prior to the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Owner may make such arrangements
for
the compensation of such successor out of payments on Mortgage Loans as the
Owner and such successor shall agree. In the event that the Servicer’s duties,
responsibilities and liabilities 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 its successor. The resignation or removal
of the Servicer pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this section and
shall in no event relieve the Servicer of the representations and warranties
made pursuant to Article III and the remedies available to the Owner under
Section 8.01, it being understood and agreed that the provisions of such
Article
III and Section 8.01 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. Any termination
or
resignation of the Servicer or termination of this Agreement pursuant to
Section
8.04, or 10.01 shall not affect any claims that the Owner may have against
the
Servicer arising prior to any such termination or resignation.
55
The
Servicer shall promptly deliver to the successor the funds in the Custodial
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 shall make such arrangements
as
it may deem appropriate to reimburse the Servicer for unrecovered Servicing
Advances which the successor retains hereunder and which would otherwise
have
been recovered by the Servicer pursuant to this Agreement but for the
appointment of the successor Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Owner of such appointment.
All
reasonable costs and expenses incurred in connection with replacing the Servicer
upon its resignation or the termination of the Servicer in accordance with
the
terms of this Agreement, including, without limitation, (i) all legal costs
and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an Event of Default
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with this Agreement, shall be payable on demand
by
the resigning or terminated Servicer without any right of reimbursement
therefor.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by the Servicer and the Owner
by
written agreement signed by the Servicer and the Owner.
Section
12.03 Force
Majeure.
If
either
party is prevented, hindered, or delayed in the performance or observance
of any
of its obligations hereunder by reason of any circumstance beyond its reasonable
control, including but not limited to fire, flood, earthquake, elements of
nature or acts of God, riots, civil disorders, rebellions or revolutions
in any
country (“Force Majeure”), that party will be excused from any further
performance or observance of the obligation(s) so affected for as long as
such
circumstances prevail and that party continues to use all commercially
reasonable efforts to recommence performance whenever and to whatever extent
possible without delay. The party affected by a Force Majeure event shall
advise
the other party in reasonable detail of the event as promptly as practicable
(including the estimated duration of the event) and keep the other party
reasonably apprised of progress in resolving the event. As applied to this
Section 12.03 and to determine whether an event is wholly beyond the control
of
a party, strikes, slow downs or other labor related delays shall not be
considered Force Majeure events.
56
Section
12.04 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS. THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
12.05 Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
(i) if
to the
Servicer:
GMAC
Mortgage Corporation
0000
Xxxxxxx Xxx.
Xxxxxxxx,
XX 00000
Attention:
General Servicing Manager
Telecopier
No.: 000-000-0000
With
a
copy to:
GMAC
Mortgage Corporation
000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
Attention:
General Counsel and Executive Vice President of the National Loan
Administration
Telecopier
No.: 000-000-0000
(ii) if
to the
Owner:
Xx.
Xxxxxxx Xxxxxxxxx
Vice
President
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Facsimile
No. (000) 000-0000
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice, or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the address
(as
evidenced, in the case of registered or certified mail, by the date noted
on the
return receipt).
57
Section
12.06 Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of
this
Agreement without regard to such invalidity.
Section
12.07 Exhibits
and Schedules.
The
exhibits, schedules and other addenda and supplements to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this
Agreement.
Section
12.08 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) 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;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) 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;
(iv) 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;
(v) 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
(vi) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
58
Section
12.09 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
12.10 Confidentiality
of Information.
The
Servicer and the Owner each agrees that any information and documents that
are
furnished for the purposes of performing under this Agreement or that are
produced or are otherwise furnished to or come to the attention of either
party
are proprietary and shall be used only for the purposes of this Agreement.
This
information includes the terms of this Agreement, technical specifications
and
operating manuals, services and information concerning current, future, or
proposed products and services and combinations of products and services;
product and services descriptions; financial information; information related
to
mergers or acquisitions; passwords and security procedures; computer programs,
software, and software documentation; customer and/or prospective client
lists ,
mortgage loan files, and all other information relating in any way to the
customer and/or prospective client; printouts; records; policies, practices
and
procedures; and any or all other information, data or materials relating
to the
business, trade secrets and technology of either party, its customers, clients,
employees, business affairs, affiliates, subsidiaries and the affiliates
of its
parent organization (all of the foregoing collectively referred to as
“Confidential Information”).
Each
party shall maintain the Confidential Information of the other in confidence
using the same care and discretion to avoid disclosure of Confidential
Information as it uses to protect its own confidential information that it
does
not want disclosed, but in no event less than a reasonable standard of care.
The
Owner specifies agrees that it will not use non-public personal information
about the Servicer’s customers in any manner prohibited by the
Xxxxx-Xxxxx-Xxxxxx Act. Each party further agrees to (a) restrict disclosure
of
Confidential Information of the disclosing party solely to persons who need
to
know the Confidential Information to perform under this Agreement, (b) not
to
disclose any Confidential Information to any third party or copy Confidential
Information without written approval of the disclosing party, and (c) inform
those third parties and other persons who receive Confidential Information
of
its confidential nature and obtain their agreement to abide by the obligations
set forth herein.
The
obligations imposed under this Agreement shall not apply to Confidential
Information that is (a) made public by the party whose Confidential Information
is disclosed, party, (b) generally available to the public other than by
a
breach of this Agreement by the receiving party, its employees or agents,
or (c)
rightfully received from a third person having the legal right to disclose
the
Confidential Information free of any obligation of confidence, nor shall
this
Section 12.10 be deemed to prohibit any disclosure by a party that is necessary
or appropriate in such party’s work with legal counsel, accountants, auditor or
as required by applicable law or regulation. In the event that the receiving
party, or any of such party’s agents or employees, becomes legally compelled (by
deposition, interrogatory, request for documents, subpoena, civil or criminal
investigative demand or similar process) to disclose any Confidential
Information of the disclosing party, such receiving party shall provide prompt
prior notice to the disclosing party so that it may seek a protective order
or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, or that the disclosing party waives compliance with
the
provisions of this Section 12.10, the receiving party will furnish only that
portion of the Confidential Information which in the judgment of its counsel
is
legally required and will exercise reasonable efforts to obtain assurances
that
confidential treatment will be accorded the Confidential
Information.
59
Each
party acknowledges and agrees that any breach or threatened breach of any
of the
provisions of this Section 12.10 by the other party will result in immediate
and
irreparable harm and that any remedies at law in such event will be inadequate.
The parties agree that such breaches, whether threatened or actual, will
give
the disclosing party the right to obtain injunctive relief to restrain such
disclosure or use. This right shall, however, be in addition to and not in
lieu
of any other remedies at law or in equity.
Upon
termination of the Agreement, all copies of the Confidential Information
will
either be destroyed or returned to the disclosing party immediately upon
such
party’s request. Each party agrees that it will not retain any copy, summary or
extract of the Confidential Information or any related work papers on any
storage medium whatsoever. Notwithstanding anything to the contrary contained
herein, Servicer shall in no event have any obligation hereunder to destroy
Mortgage Loan files or any documents related thereto.
Section
12.11 Assignment
by the Owner.
The
Owner
shall have the right, without the consent of the Servicer hereof, to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any person to exercise any rights of
the
Owner hereunder and the assignee or designee shall accede to the rights and
obligations hereunder of the Owner with respect to such Mortgage Loans. The
Servicer shall not be obligated to recognize any such assignee or designee
unless such person executes an assignment and assumption agreement reasonably
acceptable to the Servicer. All references to the Owner in this Agreement
shall
be deemed to include its assignees or designees.
Section
12.12 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Servicer
shall
be rendered as an independent contractor and not as agent for.
Section
12.13 Counterparts;
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 8.05, this Agreement shall inure
to
the benefit of and be binding upon the Servicer and the Owner and their
respective successors and assigns.
60
Section
12.14 Entire
Agreement.
Each
of
the Servicer and the Owner acknowledges 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
with respect to the matters set forth herein, and shall be binding upon all
successors of both parties.
Section
12.15 Further
Agreements.
The
Servicer and the Owner each agrees 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 purpose of this
Agreement.
61
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to be
signed
hereto by their respective officers thereunto duly authorized as of the date
and
year first above written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
By:
____________________________
Name:
Title:
GMAC
MORTGAGE CORPORATION
By:
____________________________
Name:
Title:
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
EXHIBIT
A
CUSTODIAL
ACCOUNT LETTER AGREEMENT
(date)
To:______________________
_________________________
_________________________
(the
“Depository”)
As
“Servicer” under the Amended and Restated Master Interim Servicing Agreement,
dated as of January 1, 2006, between Greenwich Capital Financial Products,
Inc.
and GMAC Mortgage Corporation (the “Agreement”), we hereby authorize and request
you to establish an account, as a Custodial Account pursuant to Section 4.04
of
the Agreement, to be designated as “_______ ______________ Custodial Account, in
trust for Greenwich Capital Financial Products, Inc., Owner of Whole 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:
___________________
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 up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
[ ]
(name
of
Depository)
By:____________________
Name:__________________
Title:_________________
A-1
EXHIBIT
B
ESCROW
ACCOUNT LETTER AGREEMENT
(date)
To:___________________________
______________________________
______________________________
(the
“Depository”)
As
“Servicer” under the Amended and Restated Master Interim Servicing Agreement,
dated as of January 1, 2006, between Greenwich Capital Financial Products,
Inc.
and GMAC Mortgage Corporation (the “Agreement”), we hereby authorize and request
you to establish an account, as an Escrow Account pursuant to Section 4.06
of
the Agreement, to be designated as “______________ Escrow Account, in trust for
Greenwich Capital Financial Products, Inc., Owner of Whole Mortgage Loans,
and
various Mortgagors”. 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:
___________________
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 up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
[
]
(name
of
Depository)
By:____________________
Name:__________________
Title:
__________________
B-1
EXHIBIT
C
ELIGIBILITY
CRITERIA
Fixed
and/or Adjustable Rate conventional first mortgages backed by 1-4 family
residential properties
C-1
EXHIBIT
D
SERVICER
COMPENSATION
|
Loan
Set Up Fee
|
$10.00
|
|
|
Monthly
Per Loan Fee (for Loans not more than 30 days delinquent) (a minimum
of 2
months fee will be assessed on each Loan)
|
$5.25
($1.50 additional charge for ARM loans)
|
|
|
Monthly
Per Loan Fee (for Loans more than 30 days delinquent)
|
$30.00
(greater than 30 days delinquent including bankruptcy and foreclosure).
This fee is in lieu of, not in addition to, the $5.25 (or $6.75
ARM loan
fee) charged for Loans that are not more than 30 days
delinquent).
|
|
|
Minimum
Monthly Charge
|
$2,500
(assessed after month 1)
|
|
|
Ancillary
Income
|
||
|
Late
Charges
|
-----Retained
by Greenwich Capital Markets---
|
|
|
Float
|
-----Retained
by GMAC Mortgage-------------
|
|
|
Other
Fees
|
-----Retained
by GMAC Mortgage-------------
|
|
|
Loan
Audits and Data Integrity Reviews
|
$10.00
per loan
|
|
|
Transfer
Out Fee Per Loan for Transfers of Loans, other than in connection
with the
termination of the Agreement in whole or in part under Section
9.01 or
Section 10.01(iii), as to which the Transfer Out Fee shall be
$0.
|
$15.00
per loan
|
|
|
(Exclusive
of transfer-related expenses which are to be paid by Greenwich
Capital
Markets).
|
||
D-1
EXHIBIT
E
TRANSFER
INSTRUCTIONS
E-1
EXHIBIT
F
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Amended and Restated Master Interim Servicing Agreement dated as
of
January 1, 2006 (the “Agreement”), between Greenwich Capital Financial
Products, Inc. and GMAC Mortgage
Corporation.
|
I,
_____________________________________, the _______________________ of GMAC
Mortgage Corporation, certify to [the Owner], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with
the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200XI that were delivered
by the Servicer to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Servicer Servicing
Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Securities Administrator] [Trustee];
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subcontractor or Subservicer pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
F-1
|
Date:
_________________________
|
|
|
GMAC
MORTGAGE CORPORATION
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
|
F-2
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE WITH REGULATION
AB
The
assessment of compliance to be delivered by [the Servicer] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
G-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Regulation
AB
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Regulation
AB Servicer’s investor records, or such other number of days specified in
the transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Regulation AB
Servicer’s
obligor records maintained no more than two business days after
receipt,
or such other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Regulation AB Servicer’s records regarding the mortgage loans agree with
the Regulation AB Servicer’s records with respect to an obligor’s unpaid
principal balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
G-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
[X]
[if
obligated under the transaction documents]
|
G-3
EXHIBIT
THREE
Pooling
and Servicing Agreement
Exhibit
Three
-1
EXHIBIT
FOUR
Exhibit
H
to Servicing Agreement
|
1.
|
The
Servicer shall not commence foreclosure proceedings or any alternative
to
foreclosure proceedings with respect to a Mortgage Loan that has
become 60
days or more delinquent unless (i) no later than five Business Days
prior
to its commencement of such foreclosure proceedings, it notifies
both the
Trustee and the sole holder of the most subordinate class of certificates
(the “Subordinate Holder”) of its intention to do so, and (ii) the
Subordinate Holder does not, within such five-Business Day period,
affirmatively object to such
action.
|
|
2.
|
In
the event that the Servicer determines not to proceed with foreclosure
proceedings or any alternative to foreclosure proceedings with respect
to
a Mortgage Loan and the Servicer has determined that it is unable
to
collect payments due under such Mortgage Loan in accordance with
the
Agreement, the Servicer shall, prior to taking any action with respect
to
such Mortgage Loan, promptly provide both the Trustee and the Subordinate
Holder with notice of such determination and a description of such
other
action as it intends to take with respect to such Mortgage Loan;
provided,
that the Servicer shall not be permitted to proceed with any such
action
unless the Subordinate Holder does not, within such five-Business
Day
period, affirmatively object to such
action.
|
|
(a)
|
If
the Subordinate Holder timely and affirmatively objects to an action
or
contemplated action of the Servicer pursuant to section 1 or 2 above,
then
the Subordinate Holder shall instruct the Trustee in writing (with
a copy
to the Servicer) to hire three appraisal firms selected by the Trustee
in
its reasonable discretion, to compute the fair value of the Mortgaged
Property securing the related Mortgage Loan utilizing the Xxxxxx
Mae Form
2055 Exterior-Only Inspection Residential Appraisal Report (each
such
appraisal-firm computation, a “Fair
Value Price”),
in each case no later than 30 days from the date of such Subordinate
Holder objection. The Servicer shall be obligated to provide the
Trustee
with contact information for, to the extent available, no less than
five
local appraisal firms within three Business Days of receiving the
affirmative objection of the Subordinate Holder. All costs relating
to the
computation of the Fair Value Prices shall be for the account of
the
Subordinate Holder and shall be paid by the Subordinate Holder at
the time
that such Mortgage Loan is purchased by the Subordinate Holder. The
Servicer assumes no responsibility for the values derived by appraisers,
the quality of the appraisals completed or the timeliness of the
completion of such appraisals pursuant to this Exhibit
Four.
|
(i) If
the
Trustee shall have received three Fair Value Prices by the end of such 30-day
period, then the Subordinate Holder shall, no later than five Business Days
after the expiration of such 30-day period, purchase such Mortgage Loan for
an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan (the “Unpaid
Principal Balance”)
and
(ii) the average of such three Fair Value Prices respectively determined by
such
appraisal firms; and shall deliver such amount to the Servicer against the
assignment of the related Mortgage Loan and the delivery of the related
documents on the purchase date.
Exhibit
Four
-1
(ii) If
the
Trustee shall not have received three Fair Value Prices by the end of the 30-day
period set forth in clause (2)(a) above, then:
(A) If
the
Trustee shall have received only two Fair Value Prices by the end of such 30-day
period, then the Trustee shall determine, in its reasonable discretion, the
fair
value of the Mortgaged Property and other collateral relating to such Mortgage
Loan (such fair value, the “Trustee’s
Fair Value Price”)
and
the Subordinate Holder shall, no later than five Business Days after the
expiration of such 30-day period, purchase such Mortgage Loan for an amount
equal to the least of (1) the Unpaid Principal Balance thereof, (2) the average
of such Fair Value Prices determined by such appraisal firms and (3) the
Trustee’s Fair Value Price; and shall deliver such amount to the Servicer
against the assignment of the related Mortgage Loan and the delivery of the
related documents on the purchase date.
(B) If
the
Trustee shall have received only one Fair Value Price by the end of such 30-day
period, then the Trustee will determine the Trustee Fair Value Price of the
Mortgaged Property related to such Mortgage Loan and the Subordinate Holder
shall, no later than five Business Days after the expiration of such 30-day
period, purchase such Mortgage Loan for an amount equal to the least of (1)
the
Unpaid Principal Balance thereof, (2) the Fair Value Price determined by such
appraisal firm and (3) the Trustee’s Fair Value Price; and shall deliver such
amount to the Servicer against the assignment of the related Mortgage Loan
and
the delivery of the related documents on the purchase date.
(C) If
the
Trustee shall not have received any such Fair Value Prices by the end of such
30-day period, then the Trustee will determine the Trustee Fair Value Price
of
the Mortgaged Property related to such Mortgage Loan and the Subordinate Holder
shall, no later than five Business Days after the expiration of such 30-day
period, purchase such Mortgage Loan for an amount equal to the lesser of (1)
the
Unpaid Principal Balance thereof and (2) the Trustee’s Fair Value Price; and
shall deliver such amount to the Servicer against the assignment of the related
Mortgage Loan and the delivery of the related documents on the purchase
date.
Exhibit
Four
-2
(D) If
the
Trustee has not received three Fair Value Prices by the end of such 30-day
period, it shall continue for the next 30 days to try to obtain three Fair
Value
Prices. Upon the earlier of the date that it obtains the three Fair Value
Prices, or the end of the 30-day extension, the Trustee shall recalculate the
price payable pursuant to this Letter Agreement and, within five Business Days
thereafter, (i) the Subordinate Holder shall pay the Servicer the positive
difference between the recalculated purchase price, and the price actually
paid
by it, or (ii) the Servicer shall refund to the Subordinate Holder the positive
difference between the purchase price actually paid by the Subordinate Holder,
and the recalculated purchase price.
Exhibit
Four
-3
SCHEDULE
ONE
Schedule
of Serviced Mortgage Loans
On
File
with XxXxx Xxxxxx
Schedule
One
-1
SCHEDULE
TWO
Calculation
of Realized Loss/Gain
| Exhibit : Calculation of Realized Loss/Gain Form 332- Instruction Sheet |
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
.
a. The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1. The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2. The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period of
coverage, base tax, interest,
penalty.
Advances prior to default require evidence of servicer efforts to recover
advances.
*
For
escrow advances - complete payment history (to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and
WFB’s approved Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
b. Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow
Agent / Attorney Letter
of
Proceeds
Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Schedule
Two
-1
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 ( ).
Schedule
Two
-2
| Exhibit 3A: Calculation of Realized Loss/Gain Form 332 |
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
|
Liquidation
and Acquisition Expenses:
|
|||
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
|
Cash
for Keys__________________________
|
________________
|
(12)
|
|
|
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
|
|
______________________________________
|
________________
|
(12)
|
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
|
Credits:
|
|||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
HUD Part A
|
|
________________
|
(18b)
HUD Part B
|
||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|
_________________________________________
|
________________
|
(21)
|
|
| Total Credits | $________________ | (22) | |
| Total Realized Loss (or Amount of Gain) | $________________ | (23) | |
Schedule
Two
-3
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of
Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
Schedule
Two
-4
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
|
Schedule
Two
-5
|
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 3A: Calculation of Realized Loss/Gain Form 332 |
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
|
Schedule
Two
-6
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
|
Schedule
Two
-7
| 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
|
Schedule
Two
-8
| 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
|
Schedule
Two
-9
