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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement. (ee) Exhibit H (Regulation AB Compliance Addendum) is hereby amended as follows: (i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e); (ii) by deleting Section 2.03(h) in its entirety; (iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05; (iv) by amending Section 2.07 in its entirety to read as follows: (a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information; (ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB; (iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or (iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement. (i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. (ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans. (iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief. (ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto. (gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2006-6)
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, the Master Servicer and the Depositor each receive 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 Company shall have the same obligations to the Trustee, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Company shall only take directions from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eex) Subsection 2.06(a) of Exhibit H (Regulation AB Compliance Addendum) K is hereby amended as follows:
(i) by deleting adding the words ", any Master Servicer" after the word "Purchaser" in the last sentence of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) such section and by deleting Section 2.03(h) in its entirety;
(iii) by replacing adding the words "March 15and certification" with after the word "attestation" in the last sentence of such section.
(y) Subsection 13.06(b) of Exhibit K is hereby amended by adding the words "March 1(and in any event within five days after any such request)" after the words "promptly upon request" in Sections 2.04 the second sentence of the first paragraph of such section and 2.05;by adding ", any Master Servicer" after the word "Purchaser" in the last sentence of the second paragraph of such section and by adding the words "and certification" after the word "attestation" in the last sentence of the second paragraph of such section.
(ivz) by amending Section 2.07 Exhibit Four attached hereto is hereby added to the Servicing Agreement as Exhibit M.
(aa) Exhibit L is hereby deleted in its entirety to read and replaced with the provisions attached hereto as follows:
(a) The Company shall indemnify the Purchaser, each affiliate Exhibit Five. EXHIBIT TWO List of the Purchaser, and each of the following parties participating Serviced Loans To be retained in a Securitization Transaction: separate closing binder entitled "Luminent 2006-6 Mortgage Loan Schedule" at the Washington DC offices of Hunton & Williams LLP EXHIBIT THREE Servicing Agreement On File with Hunton & Williams LLP [See Exhibit 99.12] Exhibit Three-1 EXHIBIT FOUR Form of Periodic Reports to Purchaser STANDARD FILE LAYOUT - MASTER SERVICING Column Name Description Decimal Format Comment Max Size --------------------------- ------------------------------------------- ------- ----------------------------------- -------- SER_INVESTOR_NBR A value assigned by the Servicer to define Text up to 10 digits 20 a group of loans. LOAN_NBR A unique identifier assigned to each sponsor loan Text up to 10 digits 10 by the investor. SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10 Servicer. This may be different than the LOAN_NBR. BORROWER_NAME The borrower name as received in the file. Maximum length of 30 (Last, First) 30 It is not separated by first and issuing entity; each Person last name. SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(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 l5d-14(ddollar signs ($) under the Exchange Act with respect 11 interest payment that a borrower is expected to such Securitization Transaction; each broker dealer acting as underwriterpay, 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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this AgreementP&I constant.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section
Appears in 1 contract
Sources: Servicing Agreement (Luminent Mortgage Trust 2006-6)
Intended Third Party Beneficiaries. Exhibit One-7 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, the Master Servicer and the Depositor each receive 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 Company shall have the same obligations to the Trustee, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Company shall only take directions from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eez) Subsection 2.06(a) of Exhibit H (Regulation AB Compliance Addendum) K is hereby amended as follows:
(i) by deleting adding the words ", any Master Servicer" after the word "Purchaser" in the last sentence of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) such section and by deleting Section 2.03(h) in its entirety;
(iii) by replacing adding the words "March 15and certification" with after the word "attestation" in the last sentence of such section.
(aa) Subsection 13.06(b) of Exhibit K is hereby amended by adding the words "March 1(and in any event within five days after any such request)" after the words "promptly upon request" in Sections 2.04 the second sentence of the first paragraph of such section and 2.05;by adding ", any Master Servicer" after the word "Purchaser" in the last sentence of the second paragraph of such section and by adding the words "and certification" after the word "attestation" in the last sentence of the second paragraph of such section.
(ivbb) by amending Section 2.07 Exhibit Four attached hereto is hereby added to the Servicing Agreement as Exhibits M, N and O.
(cc) Exhibit L is hereby deleted in its entirety and replaced with the provisions attached hereto as Exhibit Five. Exhibit One-8 EXHIBIT TWO ----------- List of Serviced Loans ---------------------- To be retained in a separate closing binder entitled "Luminent 2007-1 Mortgage Loan Schedule" at the Washington DC offices of Hunton & Williams LLP Exhibit Two-1 EXHIBIT THREE ------------- Servicing Agreement ------------------- On File with Hunton & Williams LLP Exhibit Three-1 EXHIBIT FOUR ------------ Form of Periodic Reports to read Purchaser ------------------------------------- Exhibit M --------- Standard File Layout - Master Servicing ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ Column Name Description Decimal Format Comment Max Size ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans. Text up to 10 digits 20 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ LOAN_NBR A unique identifier assigned to each loan by the investor. Text up to 10 digits 10 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be Text up to 10 digits 10 different than the LOAN_NBR. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ BORROWER_NAME The borrower name as follows:
received in the file. It is not separated Maximum length of 30 30 by first and last name. (aLast, First) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that 2 No commas(,) or dollar 11 a borrower is expected to pay, P&I constant. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ NOTE_INT_RATE The Company shall indemnify loan interest rate as reported by the Purchaser, each affiliate Servicer. 4 Max length of 6 6 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ NET_INT_RATE The loan gross interest rate less the service fee rate as 4 Max length of 6 6 reported by the Servicer. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_FEE_RATE The servicer's fee rate for a loan as reported by the Servicer. 4 Max length of 6 6 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_FEE_AMT The servicer's fee amount for a loan as reported by the 2 No commas(,) or dollar 11 Servicer. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate. 4 Max length of 6 6 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the Purchaser, and each 2 No commas(,) or dollar 11 processing cycle. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the following parties participating 2 No commas(,) or dollar 11 processing cycle. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the borrower's MM/DD/YYYY 10 next payment is due to the Servicer, as reported by Servicer. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_DATE_1 The curtailment date associated with the first curtailment MM/DD/YYYY 10 amount. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ CURT_ADJ_AMT_1 The curtailment interest on the first curtailment amount, if 2 No commas(,) or dollar 11 applicable. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_DATE_2 The curtailment date associated with the second curtailment MM/DD/YYYY 10 amount. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ CURT_ADJ_AMT_2 The curtailment interest on the second curtailment amount, if 2 No commas(,) or dollar 11 applicable. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ Exhibit Four-1 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ Column Name Description Decimal Format Comment Max Size ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SERV_CURT_DATE_3 The curtailment date associated with the third curtailment MM/DD/YYYY 10 amount. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if 2 No commas(,) or dollar 11 applicable. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ PIF_AMT The loan "paid in full" amount as reported by the Servicer. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ACTION_CODE The standard FNMA numeric code used to indicate the Action Code Key; 2 default/delinquentstatus of a Securitization Transaction: each sponsor particular loan. 15=Bankruptcy, 30=Foreclosure, 60=PIF, 63=Substitution, 65=Repurchase, 70=REO ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ INT_ADJ_AMT The amount of the interest adjustment as reported by the 2 No commas(,) or dollar 11 Servicer. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SOLDIER_SAILOR_ADJ_AMT The Soldier and issuing entity; each Person (includingSailor Adjustment amount, but not limited to, any Master Servicer if applicable. 2 No commas(,) responsible or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable. 2 No commas(,) or dollar 11 signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning 2 No commas(,) or dollar 11 of the cycle date to be passed through to investors. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the end of a 2 No commas(,) or dollar 11 processing cycle. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SCHED_PRIN_AMT The scheduled principal amount as reported by the Servicer for 2 No commas(,) or dollar 11 the current cycle -- only applicable for Scheduled/Scheduled signs ($) Loans. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ SCHED_NET_INT The scheduled gross interest amount less the service fee amount 2 No commas(,) or dollar 11 for the preparation, execution or filing of any report required to be filed with current cycle as reported by the Commission with respect to such Securitization Transaction, or Servicer -- only signs ($) applicable for execution of a certification pursuant to Rule 13a-14(dScheduled/Scheduled Loans. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the 2 No commas(,) or Rule l5d-14(ddollar 11 current reporting cycle -- only applicable for Actual/Actual signs ($) under Loans. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ ACTL_NET_INT The actual gross interest amount less the Exchange Act with respect to such Securitization Transaction; each broker dealer acting service fee amount 2 No commas(,) or dollar 11 for the current reporting cycle as underwriter, placement agent reported by the signs ($) Servicer -- only applicable for Actual/Actual Loans. ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ PREPAY_PENALTY_AMT The penalty amount received when a borrower prepays on his 2 No commas(,) or initial purchaser, each Person who controls any of such parties dollar 11 loan as reported by the Servicer. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ PREPAY_PENALTY_WAIVED The prepayment penalty amount for the loan waived by the 2 No commas(,) or the Depositor dollar 11 servicer. signs (within the meaning of Section 15 $) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ MOD_DATE The Effective Payment Date of the Securities Act Modification for the loan. MM/DD/YYYY 10 ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ MOD_TYPE The Modification Type. Varchar - value can be 30 alpha or numeric ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ DELINQ_P&I_ADVANCE_AMT The current outstanding principal and Section 20 of the Exchange Act); and the respective present and former directors, officers, employees, agents and affiliates of each of the foregoing and of the Depositor interest advances made 2 No commas(each, ,) or dollar 11 by Servicer. signs ($) ---------------------- ---------------------------------------------------------------- ------- ----------------------- ------------ Exhibit Four-2 Exhibit N: Standard File Layout - Delinquency Reporting ---------------------------- ----------------------------------------------------- ------- ----------------------------------- Column/Header Name Description Decimal Format Comment ---------------------------- ----------------------------------------------------- ------- ----------------------------------- SERVICER_LOAN_NBR A unique number assigned to a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach loan by the Company of its obligations under this Article II, including particularly any failure Servicer. This may be different than the LOAN_NBR ---------------------------- ----------------------------------------------------- ------- ----------------------------------- LOAN_NBR A unique identifier assigned to each loan by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and originator. ---------------------------- ----------------------------------------------------- ------- ----------------------------------- CLIENT_NBR Servicer Client Number ---------------------------- ----------------------------------------------------- ------- ----------------------------------- SERV_INVESTOR_NBR Contains a unique number as required under this Article II, including any failure assigned by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as external servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating group of loans in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee their system. ---------------------------- ----------------------------------------------------- ------- ----------------------------------- BORROWER_FIRST_NAME First Name of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination Borrower. ---------------------------- ----------------------------------------------------- ------- ----------------------------------- BORROWER_LAST-NAME Last name of the Company as servicer borrower. ---------------------------- ----------------------------------------------------- ------- ----------------------------------- PROP_ADDRESS Street Name and Number of Property ---------------------------- ----------------------------------------------------- ------- ----------------------------------- PROP_STATE The state where the transfer of servicing of property located. ---------------------------- ----------------------------------------------------- ------- ----------------------------------- PROP_ZIP Zip code where the Mortgage Loans to a successor servicerproperty is located. The provisions of this paragraph shall not limit whatever rights the Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section---------------------------- ----------------------------------------------------- ------- ----------------------------------- BORR_NEX
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2007-1)
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 TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer Company shall have the same obligations to the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer Company shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling and Servicing Trust Agreement.
34. Section 2(a) of Amendment Reg AB (ee) Exhibit H (Regulation AB Compliance AddendumIntent of the Parties; Reasonableness) is hereby amended as follows:
(ia) The first paragraph of such subsection is amended by deleting (1) replacing the words "of at least 10% of “the pool assets in a Securitization Transaction or sub-pool thereof" from Purchaser and any Depositor” with “the first sentence in Section 2.03(e);
Trust Fund, the Depositor, the Trustee and the Master Servicer” and (ii) by deleting Section 2.03(h) in its entirety;
(iii2) by replacing the words "March 15" “the Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer”; and
(b) The second paragraph of such subsection is amended by (1) replacing the words "March 1" in Sections 2.04 “Neither the Purchaser nor any Depositor” with “None of the Trust Fund, the Depositor, the Trustee and 2.05;
the Master Servicer,” (iv2) by amending replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance, (3) by replacing the words “the Purchaser to deliver to the Purchaser (including any of its assignees or designees) and any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer to deliver to such party (including any of its assignees or designees),” and (4) by replacing the words “the Purchaser or such Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer.”
35. Section 2.07 in its entirety to read 2(b) of Amendment Reg AB (Additional Representations and Warranties of the Company) is hereby amended as follows:
(a) The by replacing the words “the Purchaser and to any Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance;
(b) by replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance;
(c) by replacing the words “the Purchaser or such Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance; and
(d) by replacing the words “by the related Depositor” with “by the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance.
(e) by replacing in its entirety the words in subsection (vii) of Section (b)(i) of Amendment Reg AB with the words “there are no affiliations, relationships or transactions of a type described in Item 1119 of Regulation AB relating to the Company shall indemnify or any Subservicer with respect to any party listed on Exhibit F hereto.”
36. Section 2(c) (Information to Be Provided by the Company) is hereby amended as follows:
(a) by replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance;
(b) by replacing the words “the Purchaser and such Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance;
(c) by replacing the words “the Purchaser and any Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance;
(d) by replacing the words “the Purchaser or Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance;
(e) by replacing the words “the Purchaser or the Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance; and
(f) by replacing the words “the Purchaser or such Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance.
(g) by replacing the words in subsection (D) of Section 2(c) of Amendment Reg AB with the words “a description of any affiliation or relationship between the Company, each Subservicer and any of the parties listed on Exhibit F hereto.”
37. Section 2(d) of Amendment Reg AB (Servicer Compliance Statement) is hereby amended by replacing the words “the Purchaser and the Depositor” and the words “the Purchaser and such Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance.
38. Section 2(e) of Amendment Reg AB (Report on Assessment of Compliance and Attestation) is hereby amended as follows:
(a) the first paragraph after subparagraph (D) of such section is hereby amended by (1) replacing the words “Neither the Purchaser nor any Depositor” with “None of the Trust Fund, the Depositor, the Trustee and the Master Servicer” and (2) replacing the words “unless a Depositor” with “unless such party”;
(b) by replacing the words “each of the Servicing Criteria specified on a certification substantially in the form of Exhibit B hereto delivered to the Purchaser concurrently with the execution of this Agreement” in both instances with “all of the Servicing Criteria specified on Exhibit B hereto;”
(c) by replacing the words “the Purchaser and any Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance;
(d) by replacing the words “the Purchaser and such Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance;
(e) by replacing the words “the Purchaser or any Depositor” with “the Trust Fund, the Depositor, the Trustee or the Master Servicer” in each instance; and
(f) by replacing the words “the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costsPerson” with “the Trust Fund, fees the Depositor, the Trustee, the Master Servicer and expenses that any other Person” in each instance.
39. Section 2(f) of them may sustain arising out Amendment Reg AB (Use of or based uponSubservicers and Subcontractors) is hereby amended as follows:
(ia) (A) by replacing the words “the Purchaser or any untrue statement of a material fact contained or alleged to be contained in any information, report, certification, data, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of Depositor” with “the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectivelyTrust Fund, the "Company Information")Depositor, the Trustee or (B) the omission or alleged omission to state Master Servicer” in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other informationeach instance;
(iib) by replacing the words “the Purchaser and any breach Depositor” with “the Trust Fund, the Depositor, the Trustee and the Master Servicer” in each instance; and (c) by replacing the Company of its obligations under this Article IIwords “the Purchaser and such Depositor” with “the Trust Fund, including particularly any failure by the CompanyDepositor, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when the Trustee and the Master Servicer” in each instance.
40. Section 2(g) (Indemnification) is hereby amended as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;follows:
(iiia) any breach by replacing the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse words “the Purchaser, any Depositor” with “the Trust Fund, as applicablethe Depositor, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement Trustee or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth Master Servicer” in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Sectioneach instance;
Appears in 1 contract
Sources: Servicing Agreement (Lehman XS Trust Series 2006-12n)
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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(ee) 25. Exhibit H (Regulation AB Compliance Addendum) J is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 deleted in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 replaced with the Commission with respect to such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or Rule l5d-14(d) under the Exchange Act with respect to such Securitization Transaction; each broker dealer acting reporting formats attached hereto 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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this AgreementExhibit Five.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect26. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I G is hereby revised and replaced deleted in its entirety and replaced with the provisions attached hereto as Exhibit Six. The Amendment Reg AB dated January 12, 2006 among Countrywide, Luminent Mortgage Capital, Inc., Mercury Mortgage Finance Statutory Trust and Maia Mortgage Finance Statutory Trust amending the Servicing Agreement is hereby superseded by the Special Foreclosure Rights provisions set forth on Amendment Reg AB to the Master Mortgage Loan Purchase and Servicing Agreement dated as of December 1, 2005 by and between Greenwich Capital Financial Products, Inc. and Countrywide, a copy of which is attached hereto as Exhibit Three hereto.
(gg) New Exhibits JSix, K except that any references to Greenwich Capital Financial Products, Inc. shall mean Luminent Mortgage Capital, Inc. and L are hereby added containing the form as amended by Paragraphs 26-37 of servicing reports set forth on this Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights SectionA.
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent 2006-5)
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 TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer Company shall have the same obligations to the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer Company shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling and Servicing Trust Agreement.
34. Section 2
(eea) Exhibit H of Amendment Reg AB (Regulation AB Compliance AddendumIntent of the Parties; Reasonableness) is hereby amended as follows:
(ia) The first paragraph of such subsection is amended by deleting (1) replacing the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereofPurchaser and any Depositor" from with "the first sentence in Section 2.03(e);
Trust Fund, the Depositor, the Trustee and the Master Servicer" and (ii) by deleting Section 2.03(h) in its entirety;
(iii2) by replacing the words "March 15the Purchaser or any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer"; and
(b) The second paragraph of such subsection is amended by (1) replacing the words "March 1Neither the Purchaser nor any Depositor" with "None of the Trust Fund, the Depositor, the Trustee and the Master Servicer," (2) by replacing the words "the Purchaser or any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in Sections 2.04 and 2.05;
each instance, (iv3) by amending replacing the words "the Purchaser to deliver to the Purchaser (including any of its assignees or designees) and any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer to deliver to such party (including any of its assignees or designees)," and (4) by replacing the words "the Purchaser or such Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer."
35. Section 2.07 in its entirety to read 2(b) of Amendment Reg AB (Additional Representations and Warranties of the Company) is hereby amended as follows:
(a) The by replacing the words "the Purchaser and to any Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance;
(b) by replacing the words "the Purchaser or any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance;
(c) by replacing the words "the Purchaser or such Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance; and
(d) by replacing the words "by the related Depositor" with "by the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance.
(e) by replacing in its entirety the words in subsection (vii) of Section (b)(i) of Amendment Reg AB with the words "there are no affiliations, relationships or transactions of a type described in Item 1119 of Regulation AB relating to the Company shall indemnify or any Subservicer with respect to any party listed on Exhibit F hereto."
36. Section 2(c) (Information to Be Provided by the Company) is hereby amended as follows:
(a) by replacing the words "the Purchaser or any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance;
(b) by replacing the words "the Purchaser and such Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance;
(c) by replacing the words "the Purchaser and any Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance;
(d) by replacing the words "the Purchaser or Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance;
(e) by replacing the words "the Purchaser or the Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance; and
(f) by replacing the words "the Purchaser or such Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance.
(g) by replacing the words in subsection (D) of Section 2(c) of Amendment Reg AB with the words "a description of any affiliation or relationship between the Company, each Subservicer and any of the parties listed on Exhibit F hereto."
37. Section 2(d) of Amendment Reg AB (Servicer Compliance Statement) is hereby amended by replacing the words "the Purchaser and the Depositor" and the words "the Purchaser and such Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance.
38. Section 2(e) of Amendment Reg AB (Report on Assessment of Compliance and Attestation) is hereby amended as follows:
(a) the first paragraph after subparagraph (D) of such section is hereby amended by (1) replacing the words "Neither the Purchaser nor any Depositor" with "None of the Trust Fund, the Depositor, the Trustee and the Master Servicer" and (2) replacing the words "unless a Depositor" with "unless such party";
(b) by replacing the words "each of the Servicing Criteria specified on a certification substantially in the form of Exhibit B hereto delivered to the Purchaser concurrently with the execution of this Agreement" in both instances with "all of the Servicing Criteria specified on Exhibit B hereto;"
(c) by replacing the words "the Purchaser and any Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance;
(d) by replacing the words "the Purchaser and such Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance;
(e) by replacing the words "the Purchaser or any Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance; and
(f) by replacing the words "the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costsPerson" with "the Trust Fund, fees the Depositor, the Trustee, the Master Servicer and expenses that any other Person" in each instance.
39. Section 2(f) of them may sustain arising out Amendment Reg AB (Use of or based uponSubservicers and Subcontractors) is hereby amended as follows:
(ia) (A) by replacing the words "the Purchaser or any untrue statement of a material fact contained or alleged to be contained in any information, report, certification, data, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of Depositor" with "the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectivelyTrust Fund, the "Company Information")Depositor, the Trustee or (B) the omission or alleged omission to state Master Servicer" in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other informationeach instance;
(iib) by replacing the words "the Purchaser and any breach by Depositor" with "the Company of its obligations under this Article IITrust Fund, including particularly any failure by the CompanyDepositor, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when the Trustee and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating Master Servicer" in the servicing function" within the meaning of Item 1122 of Regulation AB;each instance; and
(iiic) any breach by replacing the Company of a representation or warranty set forth words "the Purchaser and such Depositor" with "the Trust Fund, the Depositor, the Trustee and the Master Servicer" in each instance.
40. Section 2.02(a2(g) or in a writing furnished pursuant to Section 2.02(b(Indemnification) and made is hereby amended 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 Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; orfollows:
(iva) by replacing the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse words "the Purchaser, any Depositor" with "the Trust Fund, as applicablethe Depositor, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement Trustee or the termination of any party to this Agreement.Master Servicer" in each instance;
(ib) Any failure by replacing the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle words "the Purchaser or Depositor" with "the Trust Fund, the Depositor, the Trustee or the Master Servicer" in each instance; and
(c) by replacing the words "Neither the Purchaser nor any Depositor" with "None of the Trust Fund, as applicablethe Depositor, the Trustee and the Master Servicer" in each instance.
41. Exhibit B of Amendment Reg AB (Servicing Criteria to be Addressed in Assessment of Compliance) is hereby replaced in its sole discretion entirety with the following: EXHIBIT B SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE The assessment of compliance to terminate be delivered by [the rights Company] [Name of Subservicer] shall address, at a minimum, the criteria identified as below as "Applicable Servicing Criteria": ----------------------------------------------------------------------------------------------------------------- Applicable Servicing Servicing Criteria Criteria ----------------------------------------------------------------------------------------------------------------- Reference Criteria ----------------------------------------------------------------------------------------------------------------- General Servicing Considerations Policies and obligations procedures are instituted to monitor any performance or other triggers and events of default in accordance with the Company as X 1122(d)(1)(i) transaction agreements. -------------------- ---------------------- If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the X third party's performance and compliance with such servicing 1122(d)(1)(ii) activities. -------------------- ---------------------- Any requirements in the transaction agreements to maintain 1122(d)(1)(iii) a back-up servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of mortgage loans are maintained. -------------------- ---------------------- A fidelity bond and errors and omissions policy is in effect on the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "party participating in the servicing function" within function throughout the meaning reporting period in the amount of Item 1122 coverage required by and X otherwise in accordance with the terms of Regulation ABthe transaction 1122(d)(1)(iv) agreements. -------------------- ---------------------- Cash Collection and Administration -------------------- ---------------------- Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more X than two business days following receipt, which continues unremedied or such other number of 1122(d)(2)(i) days specified in the transaction agreements. -------------------- ---------------------- Disbursements made via wire transfer on behalf of an obligor or to X 1122(d)(2)(ii) an investor are made only by authorized personnel. -------------------- ---------------------- Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for ten calendar days after such X advances, are made, reviewed and approved as specified in the date on which 1122(d)(2)(iii) transaction agreements. -------------------- ---------------------- The related accounts for the transaction, such informationas cash reserve accounts or accounts established as a form of overcollateralization, reportare separately maintained (e.g., certification or accountants' letter was required to be delivered shall constitute an Event of Default X 1122(d)(2)(iv) with respect to the Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, commingling of cash) as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating set forth in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section-------------------- ----------------------
Appears in 1 contract
Sources: Servicing Agreement (Sasco 2006-3h)
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 TrusteeTrust Fund, the Securities Administrator, Master Servicer Servicer, the Depositor and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer shall have the same obligations to the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor and the Depositor Trustee as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeTrust Fund, the Master Servicer Servicer, the Securities Administrator, the Depositor and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeTrust Fund, the Master Servicer Servicer, the Securities Administrator, the Depositor and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Pooling and Servicing Agreement and of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(ee) 52. [Reserved]
53. Exhibit H to the Servicing Agreement is hereby replaced in its entirety by Exhibit D attached hereto.
54. A new Exhibit H-1 (Regulation AB Compliance AddendumForm of Annual Certification) is hereby amended added to the Servicing Agreement and is attached hereto as follows:Exhibit I.
55. A new Exhibit J (iTransaction Parties) is hereby added to the Servicing Agreement and is attached hereto as Exhibit E. The assessment of compliance to be delivered by deleting ▇▇▇▇▇ Fargo Bank, N.A. shall address, at a minimum, the words "criteria identified as below as “Applicable Servicing Criteria”, as identified by a ▇▇▇▇ in the column titled “Applicable Servicing Criteria”: 1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers and events of at least 10% 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 pool assets transaction agreements. X 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 a Securitization Transaction the transaction agreements. X 1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or sub-pool thereof" from 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 first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(atransaction agreements. X 1122(d)(2)(iv) The Company shall indemnify related accounts for the Purchasertransaction, each affiliate 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 PurchaserSecurities 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 each 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 following parties participating 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 a Securitization Transaction: each sponsor and issuing entity; each Person (includingthe transaction agreements. X 1122(d)(3)(i) Reports to investors, but not limited to, any Master Servicer if applicable) responsible for the preparation, execution or filing of any report required including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission with respect to requirements. Specifically, such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or Rule l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon:
(i) reports (A) any untrue statement of a material fact contained or alleged to be contained are prepared in any information, report, certification, data, accountant's letter or accordance with timeframes and other material provided terms set forth in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or transaction agreements; (B) provide information calculated in accordance with the omission or alleged omission to state terms specified in the Company Information a material fact required to be stated in the Company Information or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingtransaction agreements; provided, by way of clarification, that clause (BC) of this paragraph shall be construed solely by reference to the Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, any Depositor, as applicable, and each Person responsible for the preparation, execution or filing of any report required to be are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. 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 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 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 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 Servicer’s records regarding the mortgage loans agree with the Servicer’s records with respect to such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(dan obligor’s unpaid principal balance. X 1122(d)(4)(vi) 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default Changes with respect to the Company under 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 Agreement transaction agreements and any applicable Reconstitution Agreementrelated pool asset documents. X 1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and shall entitle the Purchaser or any Depositordeeds 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 its sole discretion 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 terminate obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the rights and obligations obligor within 30 calendar days of full repayment of the Company 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 under at least 30 calendar days prior to these dates, or such other number of days specified in the Agreement and/or transaction agreements. X 1122(d)(4)(xii) Any late payment penalties in connection with any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to be made on behalf of an obligor are paid from the Servicer’s funds and not charged to the contrary) of any compensation obligor, unless the late payment was due to the Company (and if the Company is servicing any obligor’s error or omission. X 1122(d)(4)(xiii) Disbursements made on behalf of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that an obligor are posted within two business days to the extent that any provision of obligor’s records maintained by the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, or such provision shall be given effect.
(iiother 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 failure by the Companyexternal enhancement or other support, any Subservicer identified in Item 1114(a)(1) through (3) or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 1115 of Regulation AB, which continues unremedied is maintained as set forth in the transaction agreements. Trustee: Deutsche Bank National Trust Company Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A. Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A. Servicer(s): Countrywide Home Loans Servicing LP, ▇▇▇▇▇ Fargo Bank, N.A., HSBC Mortgage Corporation (USA) and SunTrust Mortgage, Inc. Originator(s): Countrywide Home Loans, Inc., American Home Mortgage Corp., Greenpoint Mortgage Funding, Inc., HSBC Mortgage Corporation (USA), SunTrust Mortgage, Inc. and ▇▇▇▇▇▇, Bean & ▇▇▇▇▇▇▇▇ Mortgage Corp. Custodian(s): ▇▇▇▇▇ Fargo Bank, N.A. Seller: HSBC Bank USA, National Association Exhibit 1: Layout SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans. Text up to 20 digits 20 LOAN_NBR A unique identifier assigned to each loan by the investor. Text up to 10 digits 10 SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR. Text up to 10 digits 10 SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that a borrower is expected to pay, P&I constant. 2 No commas(,) or dollar signs ($) 11 NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6 NET_INT_RATE The loan gross interest rate less the service fee rate as reported by the Servicer. 4 Max length of 6 6 SERV_FEE_RATE The servicer's fee rate for ten calendar days after a loan as reported by the Servicer. 4 Max length of 6 6 SERV_FEE_AMT The servicer's fee amount for a loan as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6 ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate. 4 Max length of 6 6 ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the processing cycle. 2 No commas(,) or dollar signs ($) 11 ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the processing cycle. 2 No commas(,) or dollar signs ($) 11 BORR_NEXT_PAY_DUE_DATE The date on which such informationat the end of processing cycle that the borrower's next payment is due to the Servicer, report, certification or accountants' letter was required as reported by Servicer. MM/DD/YYYY 10 SERV_CURT_AMT_1 The first curtailment amount to be delivered shall constitute an Event applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_1 The curtailment date associated with the first curtailment amount. MM/DD/YYYY 10 CURT_ADJ_AMT_1 The curtailment interest on the first curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_2 The curtailment date associated with the second curtailment amount. MM/DD/YYYY 10 CURT_ADJ_AMT_2 The curtailment interest on the second curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_3 The curtailment date associated with the third curtailment amount. MM/DD/YYYY 10 CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 PIF_AMT The loan "paid in full" amount as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10 ACTION_CODE The standard FNMA numeric code used to indicate the default/delinquent status of Default with respect to the Company under this Agreement and any applicable Reconstitution Agreementa particular loan. Action Code Key: 15=Bankruptcy, and shall entitle the Purchaser30=Foreclosure, any Master Servicer or any Depositor60=PIAF, as applicable63=Substitution, in its sole discretion to terminate the rights and obligations 65=Repurchase,70=REO 2 INT_ADJ_AMT The amount of the Company interest adjustment as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment reported by the Servicer. 2 No commas(notwithstanding anything in this Agreement ,) or dollar signs ($) 11 SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11 LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable. 2 No commas(,) or dollar signs ($) 11 SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning of the cycle date to be passed through to investors. 2 No commas(,) or dollar signs ($) 11 SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the contraryend of a processing cycle. 2 No commas(,) of any compensation to or dollar signs ($) 11 SCHED_PRIN_AMT The scheduled principal amount as reported by the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides Servicer for the survival of certain rights current cycle -- only applicable for Scheduled/Scheduled Loans. 2 No commas(,) or obligations following termination dollar signs ($) 11 SCHED_NET_INT The scheduled gross interest amount less the service fee amount for the current cycle as reported by the Servicer -- only applicable for Scheduled/Scheduled Loans. 2 No commas(,) or dollar signs ($) 11 ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the current reporting cycle -- only applicable for Actual/Actual Loans. 2 No commas(,) or dollar signs ($) 11 ACTL_NET_INT The actual gross interest amount less the service fee amount for the current reporting cycle as reported by the Servicer -- only applicable for Actual/Actual Loans. 2 No commas(,) or dollar signs ($) 11 PREPAY_PENALTY_AMT The penalty amount received when a borrower prepays on his loan as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 PREPAY_PENALTY_WAIVED The prepayment penalty amount for the loan waived by the servicer. 2 No commas(,) or dollar signs ($) 11 MOD_DATE The Effective Payment Date of the Company Modification for the loan. MM/DD/YYYY 10 MOD_TYPE The Modification Type. Varchar - value can be alpha or numeric 30 DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances made by Servicer. 2 No commas(,) or dollar signs ($) 11 BREACH_FLAG Flag to indicate if the repurchase of a loan is due to a breach of Representations and Warranties Y=Breach N=NO Breach Let blank if N/A 1 *The column/header names in bold are the minimum fields ▇▇▇▇▇ Fargo must receive from every Servicer 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 servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company assigned by an external servicer to identify a Subcontractor "participating group of loans in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company as servicer and the transfer of servicing of the Mortgage Loans to a successor servicertheir system. The provisions of this paragraph shall not limit whatever rights the Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights SectionBORROWER_FIRST
Appears in 1 contract
Sources: Servicing Agreement (Hsi Asset Securitization Corp)
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 TrusteeTrust Fund, Master Servicer, the Master Servicer Depositor, the NIMS Insurer (so long as the Notes issued by the NIM are outstanding) and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer shall have the same obligations to the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor NIMS Insurer as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor each NIMS Insurer shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor NIMS Insurer hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling and Servicing Trust Agreement.
58. Exhibit D-3 (ee) Exhibit H (Regulation AB Compliance AddendumForm of Loan Loss Report) is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 added to the Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof SWSA.
59. Exhibit L (Transaction Parties) is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior hereby added to the closing date of the related Securitization Transaction, SWSA.
60. Exhibit H to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I SWSA is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three M attached hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section
Appears in 1 contract
Sources: Servicing Agreement (Structured Asset Securities CORP Mortgage Loan Trust 2007-Wf1)
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 TrusteeTrust Fund, the Securities Administrator, Master Servicer Servicer, the Depositor and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer shall have the same obligations to the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor and the Depositor Trustee as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeTrust Fund, the Master Servicer Servicer, the Securities Administrator, the Depositor and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeTrust Fund, the Master Servicer Servicer, the Securities Administrator, the Depositor and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Pooling and Servicing Agreement and of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(ee) 48. [Reserved]
49. Exhibit H to the Servicing Agreement is hereby replaced in its entirety by Exhibit D attached hereto.
50. A new Exhibit J (Regulation AB Compliance AddendumTransaction Parties) is hereby amended added to the Servicing Agreement and is attached hereto as follows:
(iExhibit E. The assessment of compliance to be delivered by ▇▇▇▇▇ Fargo Bank, N.A. shall address, at a minimum, the criteria identified as below as “Applicable Servicing Criteria”, as identified by a ▇▇▇▇ in the column titled “Applicable Servicing Criteria”: 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 deleting and otherwise in accordance with the words "of at least 10% terms of the pool assets transaction agreements. X 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 a Securitization Transaction the transaction agreements. X 1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or sub-pool thereof" from 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 first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(atransaction agreements. X 1122(d)(2)(iv) The Company shall indemnify related accounts for the Purchasertransaction, each affiliate 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 PurchaserSecurities 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 each 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 following parties participating 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 a Securitization Transaction: each sponsor and issuing entity; each Person (includingthe transaction agreements. X 1122(d)(3)(i) Reports to investors, but not limited to, any Master Servicer if applicable) responsible for the preparation, execution or filing of any report required including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission with respect to requirements. Specifically, such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or Rule l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon:
(i) reports (A) any untrue statement of a material fact contained or alleged to be contained are prepared in any information, report, certification, data, accountant's letter or accordance with timeframes and other material provided terms set forth in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or transaction agreements; (B) provide information calculated in accordance with the omission or alleged omission to state terms specified in the Company Information a material fact required to be stated in the Company Information or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingtransaction agreements; provided, by way of clarification, that clause (BC) of this paragraph shall be construed solely by reference to the Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, any Depositor, as applicable, and each Person responsible for the preparation, execution or filing of any report required to be are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. 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 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 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 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 Servicer’s records regarding the mortgage loans agree with the Servicer’s records with respect to such Securitization Transaction, or for execution of a certification pursuant to Rule 13a-14(dan obligor’s unpaid principal balance. X 1122(d)(4)(vi) 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default Changes with respect to the Company under 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 Agreement transaction agreements and any applicable Reconstitution Agreementrelated pool asset documents. X 1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and shall entitle the Purchaser or any Depositordeeds 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 its sole discretion 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 terminate obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the rights and obligations obligor within 30 calendar days of full repayment of the Company 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 under at least 30 calendar days prior to these dates, or such other number of days specified in the Agreement and/or transaction agreements. X 1122(d)(4)(xii) Any late payment penalties in connection with any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to be made on behalf of an obligor are paid from the Servicer’s funds and not charged to the contrary) of any compensation obligor, unless the late payment was due to the Company (and if the Company is servicing any obligor’s error or omission. X 1122(d)(4)(xiii) Disbursements made on behalf of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that an obligor are posted within two business days to the extent that any provision of obligor’s records maintained by the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, or such provision shall be given effect.
(iiother 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 failure by the Companyexternal enhancement or other support, any Subservicer identified in Item 1114(a)(1) through (3) or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 1115 of Regulation AB, which continues unremedied is maintained as set forth in the transaction agreements. Trustee: Deutsche Bank National Trust Company Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A. Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A. Servicer(s): Countrywide Home Loans Servicing LP, ▇▇▇▇▇ Fargo Bank, N.A., American Home Mortgage Servicing, Inc., Residential Funding Company, LLC and SunTrust Mortgage, Inc. Originator(s): Countrywide Home Loans, Inc., American Home Mortgage Corp., Residential Funding Company, LLC, SunTrust Mortgage, Inc., American Mortgage Network, Inc. and ▇▇▇▇▇▇, Bean & ▇▇▇▇▇▇▇▇ Mortgage Corp. Custodian(s): ▇▇▇▇▇ Fargo Bank, N.A. Seller: HSBC Bank USA, National Association Exhibit 1: Layout SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans. Text up to 20 digits 20 LOAN_NBR A unique identifier assigned to each loan by the investor. Text up to 10 digits 10 SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR. Text up to 10 digits 10 SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that a borrower is expected to pay, P&I constant. 2 No commas(,) or dollar signs ($) 11 NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6 NET_INT_RATE The loan gross interest rate less the service fee rate as reported by the Servicer. 4 Max length of 6 6 SERV_FEE_RATE The servicer's fee rate for ten calendar days after a loan as reported by the Servicer. 4 Max length of 6 6 SERV_FEE_AMT The servicer's fee amount for a loan as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6 ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate. 4 Max length of 6 6 ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the processing cycle. 2 No commas(,) or dollar signs ($) 11 ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the processing cycle. 2 No commas(,) or dollar signs ($) 11 BORR_NEXT_PAY_DUE_DATE The date on which such informationat the end of processing cycle that the borrower's next payment is due to the Servicer, report, certification or accountants' letter was required as reported by Servicer. MM/DD/YYYY 10 SERV_CURT_AMT_1 The first curtailment amount to be delivered shall constitute an Event applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_1 The curtailment date associated with the first curtailment amount. MM/DD/YYYY 10 CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_2 The curtailment date associated with the second curtailment amount. MM/DD/YYYY 10 CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11 SERV_CURT_DATE_3 The curtailment date associated with the third curtailment amount. MM/DD/YYYY 10 CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 PIF_AMT The loan "paid in full" amount as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10 ACTION_CODE The standard FNMA numeric code used to indicate the default/delinquent status of Default with respect to the Company under this Agreement and any applicable Reconstitution Agreementa particular loan. Action Code Key: 15=Bankruptcy, and shall entitle the Purchaser▇▇=▇▇▇▇▇▇▇▇▇▇▇, any Master Servicer or any Depositor, as applicable▇▇=▇▇▇, in its sole discretion to terminate the rights and obligations 63=Substitution, 65=Repurchase,70=REO 2 INT_ADJ_AMT The amount of the Company interest adjustment as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment reported by the Servicer. 2 No commas(notwithstanding anything in this Agreement ,) or dollar signs ($) 11 SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable. 2 No commas(,) or dollar signs ($) 11 NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11 LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable. 2 No commas(,) or dollar signs ($) 11 SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning of the cycle date to be passed through to investors. 2 No commas(,) or dollar signs ($) 11 SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the contraryend of a processing cycle. 2 No commas(,) of any compensation to or dollar signs ($) 11 SCHED_PRIN_AMT The scheduled principal amount as reported by the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides Servicer for the survival of certain rights current cycle — only applicable for Scheduled/Scheduled Loans. 2 No commas(,) or obligations following termination dollar signs ($) 11 SCHED_NET_INT The scheduled gross interest amount less the service fee amount for the current cycle as reported by the Servicer — only applicable for Scheduled/Scheduled Loans. 2 No commas(,) or dollar signs ($) 11 ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the current reporting cycle — only applicable for Actual/Actual Loans. 2 No commas(,) or dollar signs ($) 11 ACTL_NET_INT The actual gross interest amount less the service fee amount for the current reporting cycle as reported by the Servicer — only applicable for Actual/Actual Loans. 2 No commas(,) or dollar signs ($) 11 PREPAY_PENALTY_ AMT The penalty amount received when a borrower prepays on his loan as reported by the Servicer. 2 No commas(,) or dollar signs ($) 11 PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived by the servicer. 2 No commas(,) or dollar signs ($) 11 MOD_DATE The Effective Payment Date of the Company Modification for the loan. MM/DD/YYYY 10 MOD_TYPE The Modification Type. Varchar - value can be alpha or numeric 30 DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances made by Servicer. 2 No commas(,) or dollar signs ($) 11 BREACH_FLAG Flag to indicate if the repurchase of a loan is due to a breach of Representations and Warranties Y=Breach N=NO Breach Let blank if N/A 1 *The column/header names in bold are the minimum fields ▇▇▇▇▇ Fargo must receive from every Servicer 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 servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company assigned by an external servicer to identify a Subcontractor "participating group of loans in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee their system. BORROWER_FIRST_NAME First Name of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination Borrower. BORROWER_LAST_NAME Last name of the Company as servicer and the transfer of servicing of the Mortgage Loans to a successor servicerborrower. The provisions of this paragraph shall not limit whatever rights the Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights SectionPROP_ADDRESS
Appears in 1 contract
Sources: Servicing Agreement (Hsi Asset Securitization Corp)
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, to the Master Servicer and extent it is acting on behalf of the Depositor each Trust Fund, receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling Trust Agreement. ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT dated March 21, 2002, among Banc of America Mortgage Capital Corporation, (the “Assignor”), Bank of America, N.A., (the “Assignee”) and Servicing Agreement.
ABN AMRO Mortgage Group, Inc. (eethe “Company”): For and in consideration of the sum of one dollar ($1.00) Exhibit H (Regulation AB Compliance Addendum) is and other valuable consideration the receipt and sufficiency of which are hereby amended acknowledged, and of the mutual covenants herein contained, the parties hereto hereby agree as follows:
1. With respect to the mortgage loans listed on Exhibit A hereto (i) by deleting the words "of at least 10% “Mortgage Loans”), the Assignor hereby grants, transfers and assigns to the Assignee all of the pool assets in a Securitization Transaction or sub-pool thereof" right, title and interest of the Assignor, as Purchaser, in, to and under that certain Flow Sale and Servicing Agreement (the “Flow Sale and Servicing Agreement”), dated as of February 1, 2002, and the related Memorandum of Sale dated March 21, 2002 (together with the Flow Sale and Servicing Agreement, the “Flow Sale Agreement”), each by and between the Assignor and the Company, and the Mortgage Loans delivered thereunder by the Company to the Assignor, and that certain Custodial Agreement (the “Custodial Agreement”), dated as of February 1, 2002, by and among the Company, the Purchaser and LaSalle Bank National Association (the “Custodian”).
2. The Assignor warrants and represents to, and covenants with, the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full right to transfer the Mortgage Loans free from the first sentence in Section 2.03(e)any and all claims and encumbrances whatsoever;
(ii) by deleting Section 2.03(h) in its entiretyb. The Assignor has not received notice of, and has no knowledge of, any offsets, counterclaims or other defenses available to the Company with respect to the Flow Sale Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed to any amendment or other modification of, the Flow Sale Agreement, the Custodial Agreement or the Mortgage Loans, including without limitation the transfer of the servicing obligations under the Flow Sale Agreement. The Assignor has no knowledge of, and has not received notice of, any waivers under or amendments or other modifications of, or assignments of rights or obligations under, the Flow Sale Agreement, the Custodial Agreement or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage Loans or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Mortgage Loans, any interest in the Mortgage Loans or any other similar security from, or otherwise approached or negotiated with respect to the Mortgage Loans, any interest in the Mortgage Loans or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Mortgage Loans under the Securities Act of 1933 (iiithe “Securities Act”) by replacing or which would render the words "March 15" with disposition of the words "March 1" in Sections 2.04 Mortgage Loans a violation of Section 5 of the Securities Act or require registration pursuant thereto.
3. That Assignee warrants and 2.05;
(iv) by amending represent to, and covenants with, the Assignor and the Company pursuant to Section 2.07 in its entirety to read as follows12.10 of the Flow Sale Agreement that:
(a) a. The Company shall indemnify the Assignee agrees to be bound, as Purchaser, each affiliate by all of the Purchaserterms, covenants and conditions of the Flow Sale Agreement and the Custodial Agreement, and from and after the date hereof, the Assignee assumes for the benefit of each of the following parties participating in a Securitization Transaction: each sponsor Company and issuing entity; each Person (including, but the Assignor all of the Assignor’s obligations as purchaser or owner thereunder;
b. The Assignee understands that the Mortgage Loans have not limited to, been registered under the Securities Act or the securities laws of any Master Servicer if applicable) responsible state;
c. The purchase price being paid by the Assignee for the preparationMortgage Loans is in excess of $250,000.00 and will be paid by cash remittance of the full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment for its own account only and not for any other person. In this connection, execution or filing neither the Assignee nor any person authorized to act therefor has offered to sell the Mortgage Loans by means of any report required to be filed with the Commission with respect to such Securitization Transaction, general advertising or for execution of a certification pursuant to Rule 13a-14(d) or Rule l5d-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 (general solicitation within the meaning of Rule 502(c) Regulation D promulgated under the Securities Act;
e. The Assignee considers itself a substantial sophisticated institutional investor having such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans;
f. The Assignee has been furnished with all information regarding the Mortgage Loans that it has requested from the Assignor or the Company;
g. Neither the Assignee nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage Loans or any other similar security to, or solicited any offer to buy or accepted a transfer, pledge or other disposition of the Mortgage Loans, any interest in the Mortgage Loans or any other similar security from, or otherwise approached or negotiated with respect to the Mortgage Loans, any interest in the Mortgage Loans or any other similar security with, any person in any manner which would constitute a distribution of the Mortgage Loans under the Securities Act or which would render the disposition of the Mortgage Loans a violation of Section 15 5 of the Securities Act and Section 20 of or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Exchange Act)Mortgage Loans; and the respective present and former directors, officers, employees, agents and affiliates of each of the foregoing and of the Depositor and
h. Either (each, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B1) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company Information or necessary in order to make the statements therein, in the light of the circumstances under which they were made, Assignee is not misleading; provided, by way of clarification, that clause an employee benefit plan (B“Plan”) of this paragraph shall be construed solely by reference to the Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 section 3(3) of Regulation AB;the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or a plan (“Plan”) within the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 (“Code”), and the Assignee is not directly or indirectly purchasing the Mortgage Loans on behalf of, investment manager of, as named fiduciary of, as trustee of, or with assets of, a Plan; or (2) the Assignee’s purchase of the Mortgage Loans will not result in a prohibited transaction under section 406 of ERISA or section 4975 of the Code.
i. The Assignee’s address for purposes of all notices and correspondence related to the Mortgage Loans and the Flow Sale Agreement is: Bank of America, N.A. c/o Bank of America Mortgage Master Servicing Department ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ The Assignee’s wire transfer instructions for purposes of all remittances and payments related to the Mortgage Loans and the Flow Sale Agreement is: For the account of Bank of America, N.A. ABA#: ▇▇▇▇▇▇▇▇▇ A/C#: 000682260734 A/C Name: Bank of America ITF Clearing for SBO Investors and Various Mortgagors Taxpayer ID#: ▇▇-▇▇▇▇▇▇▇
4. Accuracy of the Flow Sale Agreement. The Company and the Assignor represent and warrant to the Assignee that (i) attached hereto as Exhibit B is a true, accurate and complete copy of the Flow Sale Agreement, the Custodial Agreement and all amendments and modifications, if any, thereto, (ii) neither the Flow Sale Agreement nor the Custodial Agreement has been amended or modified in any respect, except as set forth in this Agreement, and (iii) any breach by the Company no notice of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect has been given to the Company under the Agreement Flow Sale Agreement. The Company represents and any applicable Reconstitution Agreement, and shall entitle warrants that through the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of date hereof the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of has serviced the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to accordance with the extent that any provision terms of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effectFlow Sale Agreement.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when 5. Recognition of Assignee. From and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 informationhereof, report, certification or accountants' letter was required to be delivered shall constitute an Event of Default with respect to the Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company as servicer and note the transfer of servicing of the Mortgage Loans to a successor servicer. The provisions of this paragraph the Assignee in its books and records, the Company shall not limit whatever rights recognize the Purchaser or any Depositor may have under other provisions Assignee as the owner of the Mortgage Loans and the Company shall service the Mortgage Loans for the benefit of the Assignee pursuant to the Flow Sale Agreement, the terms of which are incorporated herein by reference. It is the intention of the Assignor, the Company and the Assignee that the Flow Sale Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive reliefshall be binding upon and inure to the benefit of the Company and the Assignee and their respective successors and assigns.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section
Appears in 1 contract
Sources: Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Cert Ser 2002-26)
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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(ee) Exhibit H (Regulation AB Compliance Addendum) is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I D is hereby revised and replaced deleted in its entirety by and replaced with the Special Foreclosure Rights provisions set forth on form attached hereto as Exhibit Three heretoFour.
(gg) New Exhibits J, K Exhibit E is hereby deleted in its entirety and L are hereby added containing replaced with the form of servicing reports set forth on attached hereto as Exhibit Six heretoFive.
(hh) Exhibit F, Exhibit G and Exhibit H are each hereby deleted in their entirety and replaced with the reporting formats attached hereto as Exhibit Six.
(ii) Exhibit I is hereby amended by removing the brackets from the right column in the blocks corresponding to the following Reference sections: 1122(d)(3)(ii), 1122(d)(3)(iii) and 1122(d)(3)(iv), and by inserting an "X" in the blocks corresponding to the following Reference sections: 1122(d)(4)(i), 1122(d)(4)(ii) and 1122(d)(4)(iii).
(jj) Exhibit J is hereby deleted in its entirety.
(kk) Exhibit K is hereby deleted in its entirety and replaced with the provisions attached hereto as Exhibit Seven. EXHIBIT TWO List of Serviced Loans To be retained in a separate closing binder entitled "Luminent 2006-6 Mortgage Loan Schedule" at the Washington DC offices of Hunton & Williams LLP EXHIBIT THREE Special Foreclosure Rights SectionServicing Agreement On File with Hunton & Williams LLP EXHIBIT FOUR Exhibit D Form of Request for Release of Documents and Receipt Wells Fargo Bank, N.A. 1015 Tenth Avenue Southeast Minneapolis, MN ▇▇▇▇▇ Attention: Mortga▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇istration of the mortgages held by you as Custodian under that certain Custodial Agreement, dated as of September 1, 2006 (the "CUSTODIAL AGREEMENT"), among Wells Fargo Bank, N.A., as custodian (the "CUSTODIAN") and HSBC Ban▇ ▇▇▇, National Association, as the trustee (the "TRUSTEE"), the [Master Servicer] [Servicer] hereby requests a release of the Mortgage File held by you as Custodian with respect to the following described Mortgage Loan for the reason indicated below.
Appears in 1 contract
Sources: Servicing Agreement (Luminent Mortgage Trust 2006-6)
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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eeff) Exhibit H (Regulation AB Compliance Addendum) is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(ivii) by amending Section 2.07 in its entirety to read as follows:: Exhibit Two-8
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; provided, however, that in no event, other than with respect to any indemnification obligations of the Company relating to any Company Information provided by the Company for inclusion in the any prospectus, prospectus supplement, or any private placement memorandum, or in any amendment or supplement thereto, in a Securitization Transaction, will the Company be liable for any consequential or punitive damages pursuant to this Section 2.07, even if advised of the possibility of such damages. The Purchaser shall indemnify the Company, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the respective present and former directors, officers, employees, agents and affiliates of each of the foregoing (each, a "Company Indemnified Party;" together with the Purchaser Indemnified Parties, the "Indemnified Parties"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon any untrue statement contained or alleged to be contained in any filing with the Commission or the omission or alleged omission to state in any filing with the Commission a material fact required to be stated or necessary to be stated in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement, alleged untrue statement, omission, or alleged omission arose out of or was based upon any information or statement, other than the Company Information, in a filing with the Commission. If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any Except as provided in the following paragraph, any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 AB by the date on which such information, report, certification or accountants' letter was is required to be delivered delivered, without notice or grace period, shall constitute an Event of Default with respect to the Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company 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 Exhibit Two-11 functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ffgg) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gghh) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. Exhibit Two-12 EXHIBIT THREE ------------- Special Foreclosure Rights SectionSection ----------------------------------
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2007-2)
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, the Master Servicer and the Depositor each receive 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 Company shall have the same obligations to the Trustee, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Company shall only take directions from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eez) Subsection 2.06(a) of Exhibit H (Regulation AB Compliance Addendum) K is hereby amended as follows:
(i) by deleting adding the words ", any Master Servicer" after the word "Purchaser" in the last sentence of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) such section and by deleting Section 2.03(h) in its entirety;
(iii) by replacing adding the words "March 15and certification" with after the word "attestation" in the last sentence of such section.
(aa) Subsection 13.06(b) of Exhibit K is hereby amended by adding the words "March 1(and in any event within five days after any such request)" after the words "promptly upon request" in Sections 2.04 the second sentence of the first paragraph of such section and 2.05;by adding ", any Master Servicer" after the word "Purchaser" in the last sentence of the second paragraph of such section and by adding the words "and certification" after the word "attestation" in the last sentence of the second paragraph of such section.
(ivbb) by amending Section 2.07 Exhibit Four attached hereto is hereby added to the Servicing Agreement as Exhibits M, N and O.
(cc) Exhibit L is hereby deleted in its entirety to read and replaced with the provisions attached hereto as follows:
(a) The Company shall indemnify the Purchaser, each affiliate Exhibit Five. Exhibit One-8 EXHIBIT TWO ----------- List of the Purchaser, and each of the following parties participating Serviced Loans ---------------------- To be retained in a Securitization Transaction: each sponsor and issuing entity; each Person (including, but not limited to, any Master Servicer if applicable) responsible for separate closing binder entitled "Luminent 2007-2 Mortgage Loan Schedule" at the preparation, execution or filing Washington DC offices 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Hunton & Williams LLP Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. Two-1 EXHIBIT THREE Special Foreclosure Rights Section------------- Servicing Agreement ------------------- On File with Hunton & Williams LLP Exhibit Three-1 EXHIBIT FOUR ------------ Form of Periodic Reports to Purchaser ------------------------------------- Exhibit M ----------------------------------------------------------------------------------------------------------------------------------- Standard Loan Level File Layout -- Master Servicing -----------------------------------------------------------------------------------------------------------------------------------
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2007-2)
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 TrusteeMaster Servicer, on behalf of the Master Servicer and the Depositor each Trust, receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor it were each a party to this Agreement, and the TrusteeMaster Servicer, on behalf of the Master Servicer and the Depositor each Trust, 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 direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
. EXHIBIT B Flow Servicing Agreement EXHIBIT C Assignment, Assumption and Recognition Agreement SCHEDULE I Mortgage Loan Schedule (ee) Exhibit H (Regulation AB Compliance Addendum) is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 delivered to the Company Information and not to any other information communicated Trustee in connection with a sale or purchase of securitieselectronic format) CITIGROUP GLOBAL MARKETS REALTY CORP. OWNER AND WELLS FARGO BANK, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article IIN.A. SERVICER ---------- AMENDED AND RESTATED FLOW SERVICING AGREEMENT DATED AS OF MARCH 1, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section2006 ---------- FIXED AND ADJUSTABLE RATE FIRST AND SECOND LIEN MORTGAGE LOANS TABLE OF CONTENTS
Appears in 1 contract
Sources: Servicing Agreement (Thornburg Mortgage Securities Trust 2006-5)
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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall Schedule A-12 terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eeoo) Exhibit H B is hereby amended by replacing the words "Wachovia Bank, National Association" in paragraph (Regulation AB Compliance Addendum3) with the words "Trustee of Luminent Mortgage Trust 2006-7".
(pp) Exhibit C is hereby amended by replacing the words "Wachovia Bank, National Association" with the words "Trustee of Luminent Mortgage Trust 2006-7".
(qq) Exhibit D is hereby amended by replacing the words "Wachovia Bank, National Association" with the words "Trustee of Luminent Mortgage Trust 2006-7".
(rr) Exhibit E is hereby amended by replacing the words "Wachovia Bank, National Association" with the words "Trustee of Luminent Mortgage Trust 2006-7".
(ss) Exhibit F is hereby amended by replacing the words "Wachovia Bank, National Association" with the words "Trustee of Luminent Mortgage Trust 2006-7".
(tt) Exhibit G-1 is hereby amended as follows:
(i) by deleting replacing the words "of address block at least 10% the top of the pool assets in a Securitization Transaction or sub-pool thereof" from first page with the first sentence in Section 2.03(e)following: Maia Mortgage Finance Statutory Trust ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(ii) by deleting Section 2.03(h) in its entirety;replacing the name "▇▇▇▇▇ ▇▇▇▇▇▇▇" with "▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇"; and
(iii) by replacing the words "March 15Wachovia Bank, National Association" with the words "March 1" in Sections 2.04 and 2.05;Trustee of Luminent Mortgage Trust 2006-7".
(ivuu) by amending Section 2.07 Exhibit J is hereby deleted in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a marked "Purchaser Indemnified PartyReserved"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(ivv) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior Exhibit M to the closing date Master Agreement (Form of the related Securitization Transaction, to the extent that such breach Officer's Certificate) is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, deleted in its sole discretion to terminate the rights entirety and obligations is replaced by Exhibit A (Form of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contraryAnnual Certification) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Compliance with 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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, ) attached as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three A-2 hereto.
(ggww) New Exhibits J, K Exhibit N to the Master Agreement (Nat City Monthly Data Reports) is deleted in its entirety and L are hereby added containing the form is replaced with Exhibit One hereto (The Form of servicing reports set forth on Periodic Reports to Purchaser).
(xx) Exhibit Six hereto. EXHIBIT THREE Two attached hereto ("Special Foreclosure Rights Section") is hereby attached to the Master Agreement as Exhibit O.
(yy) The agreement attached hereto as Exhibit A-3 ("Compliance with Regulation AB") is hereby amended as follows:
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2006-7)
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 TrusteeTrust Fund, Master Servicer, the Master Servicer Depositor, the NIMS Insurer (so long as the Notes issued by the NIM are outstanding) and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer shall have the same obligations to the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor NIMS Insurer as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor each NIMS Insurer shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeTrust Fund, the Master Servicer Servicer, the Depositor, the Trustee and the Depositor NIMS Insurer hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling and Servicing Trust Agreement.
60. Exhibit D-3 (ee) Exhibit H (Regulation AB Compliance AddendumForm of Loan Loss Report) is hereby amended as follows:
(i) by deleting the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 added to the Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof SWSA.
61. Exhibit L (Transaction Parties) is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior hereby added to the closing date of the related Securitization Transaction, SWSA.
62. Exhibit H to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I SWSA is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six M attached hereto. EXHIBIT THREE Special Foreclosure Rights SectionARTICLE I 1 DEFINITIONS 1 ARTICLE II 15
Appears in 1 contract
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, the Master Servicer and the Depositor each receive 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 Company shall have the same obligations to the Trustee, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Company shall only take directions from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
(eeaa) Subsection 2.06(a) of Exhibit H (Regulation AB Compliance Addendum) K is hereby amended as follows:
(i) by deleting adding the words ", any Master Servicer" after the word "Purchaser" in the last sentence of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereof" from the first sentence in Section 2.03(e);
(ii) such section and by deleting Section 2.03(h) in its entirety;
(iii) by replacing adding the words "March 15and certification" with after the word "attestation" in the last sentence of such section.
(bb) Subsection 13.06(b) of Exhibit K is hereby amended by adding the words "March 1(and in any event within five days after any such request)" after the words "promptly upon request" in Sections 2.04 the second sentence of the first paragraph of such section and 2.05;by adding ", any Master Servicer" after the word "Purchaser" in the last sentence of the second paragraph of such section and by adding the words "and certification" after the word "attestation" in the last sentence of the second paragraph of such section.
(ivcc) by amending Section 2.07 Exhibit Four attached hereto is hereby added to the Servicing Agreement as Exhibits M, N and O.
(dd) Exhibit L is hereby deleted in its entirety to read and replaced with the provisions attached hereto as follows:
(a) The Company shall indemnify the Purchaser, each affiliate Exhibit Five. EXHIBIT TWO List of the Purchaser, and each of the following parties participating Serviced Loans To be retained in a Securitization Transaction: each sponsor and issuing entity; each Person (including, but not limited to, any Master Servicer if applicable) responsible for separate closing binder entitled "Luminent 2006-7 Mortgage Loan Schedule" at the preparation, execution or filing Washington DC offices 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. Hunton & Williams LLP ▇▇▇▇▇▇▇ Two-1 EXHIBIT THREE Special Foreclosure Rights SectionServicing Agreement On File with Hunton & Williams LLP ▇▇▇▇▇it Three-1 EXHIBIT FOUR Form of Periodic Reports to Purchaser Exhibit M Standard File Layout - Master Servicing
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent Mortgage Trust 2006-7)
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 TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee receive the benefit of the provisions of this Agreement as an intended third party beneficiary beneficiaries of this Agreement to the extent of such provisions. The Servicer Company shall have the same obligations to the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee as if the Trustee, the Master Servicer and the Depositor they were each a party parties to this Agreement, and the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor each Trustee shall have the same rights and remedies to enforce the provisions of this Agreement as if it they were a party parties to this Agreement. The Servicer Company shall only take directions direction from the Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the TrusteeMaster Servicer, the Master Servicer Depositor and the Depositor Trustee hereunder (other than the right to indemnification and the indemnification obligations, as applicableindemnification) shall terminate upon termination of the Trust Agreement and of the Trust Fund pursuant to the Pooling and Servicing Trust Agreement.
34. Section 2
(eea) Exhibit H of Amendment Reg AB (Regulation AB Compliance AddendumIntent of the Parties; Reasonableness) is hereby amended as follows:
(ia) The first paragraph of such subsection is amended by deleting (1) replacing the words "of at least 10% of the pool assets in a Securitization Transaction or sub-pool thereofPurchaser and any Depositor" from with "the first sentence in Section 2.03(e);
Trust Fund, the Depositor, the Trustee and the Master Servicer" and (ii) by deleting Section 2.03(h) in its entirety;
(iii2) by replacing the words "March 15" with the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the Purchaser, 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 l5d-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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor" with "the Trust Fund, as applicablethe Depositor, in its sole discretion to terminate the rights and obligations Trustee or the Master Servicer"; and
(b) The second paragraph of such subsection is amended by (1) replacing the words "Neither the Purchaser nor any Depositor" with "None of the Company as servicer under Trust Fund, the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company as servicer Trustee and the transfer of servicing of Master Servicer," (2) by replacing the Mortgage Loans to a successor servicer. The provisions of this paragraph shall not limit whatever rights the Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Sectionwords
Appears in 1 contract
Sources: Servicing Agreement (Lehman XS Trust Series 2006-10n)
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, the Master Servicer and the Depositor each receive 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, the Master Servicer and the Depositor as if the Trustee, the Master Servicer and the Depositor were each a party to this Agreement, and the Trustee, the Master Servicer and the Depositor each 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 Master Servicer (if direction by the Master Servicer is required under this Agreement) unless otherwise directed by this Agreement. Notwithstanding the foregoing, all rights and obligations of the Trustee, the Master Servicer and the Depositor hereunder (other than the right to indemnification and the indemnification obligations, as applicable) shall terminate upon termination of the Trust Fund pursuant to the Pooling and Servicing Agreement.
Section 11.01 of the Servicing Addendum (ee) Exhibit H (Regulation AB Compliance AddendumServicer to Act as Servicer) is hereby amended as follows:
(i) by deleting adding the words "of following proviso at least 10% the end of the pool assets first paragraph to read as follows: provided, however, that the Servicer shall not knowingly or intentionally take any action, or fail to take (or fail to cause to be taken) any action reasonably within its control and the scope of duties more specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may be, would cause any REMIC created under the Pooling and Servicing Agreement to fail to qualify as a REMIC or result in the imposition of a Securitization Transaction or sub-pool thereof" from tax upon the first sentence Trust (including but not limited to the tax on prohibited transactions as defined in Section 2.03(e);860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code) unless the Trustee and the Master Servicer have received an Opinion of Counsel (at the expense of the Servicer reimbursable from funds in the Custodial Account) to the effect that the contemplated action will not cause any REMIC created under the Pooling and Servicing Agreement to fail to qualify as a REMIC or result in the imposition of a tax upon any such REMIC created thereunder.
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing adding the words "March 15" with following additional proviso at the words "March 1" in Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety end of the first sentence of the second paragraph to read as follows:
(a) The Company : ; provided, further, no such modification shall indemnify be permitted unless the Purchaser, each affiliate of Servicer shall have provided to the Purchaser, Trustee 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 applicablean Opinion of Counsel in writing to the effect that such modification, waiver or amendment would not cause either (i) responsible for the preparationloss of status as a REMIC, 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 l5d-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 860D of the Securities Act Code, for any group of assets identified as a REMIC in the Preliminary Statement to the Pooling 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, a "Purchaser Indemnified Party"), and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that 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, accountant's letter or other material provided in written or electronic form under this Article II by or on behalf of the Company, or provided under this Article II by or on behalf of any Subservicer or Subcontractor (collectively, the "Company Information")Servicing Agreement, or (Bii) the omission or alleged omission imposition of any tax, including the tax imposed under Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section 860G(d) on certain contributions to state in a REMIC, on any REMIC created under the Company Information Pooling and Servicing Agreement to the extent such tax would be payable from assets held as part of the Trust Fund, such event, an “Adverse REMIC Event.” The costs of obtaining such Opinion of Counsel shall be a material fact required reimbursable expense to the Seller to be stated in withdrawn from the Company 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 Company Information and not to any other information communicated in connection with a sale or purchase of securities, without regard to whether the Company Information or any portion thereof is presented together with or separately from such other information;
(ii) any breach by the Company of its obligations under this Article II, including particularly any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, including any failure by the Company to identify Custodial Account pursuant to Section 2.06(b) 11.05 of this Agreement. Promptly after the execution of any Subcontractor "participating in modification of any Mortgage Loan, the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior Servicer shall deliver to the closing date Trustee the originals of any documents evidencing such modification.
30. Section 11.03(d) of the related Securitization Transaction, to the extent that such breach Servicing Addendum (Realization Upon Defaulted Mortgage Loans) is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the performance of the Company's duties, or by reason of reckless disregard of obligations and duties, under this Article II; If the indemnification provided for herein is unavailable or insufficient to hold harmless an Indemnified Party, then the Company 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 Company on the other. In the case of any failure of performance described in clause (a)(ii) of this Section, the Company shall promptly reimburse the Purchaser, 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 under Regulation AB by the Company, any Subservicer or any Subcontractor. This indemnification shall survive the termination of this Agreement or the termination of any party to this Agreement.
(i) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification, accountants' letter or other material when and as required under this Article II, or any breach by the Company of a representation or warranty set forth in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of a date prior to the closing date of the related Securitization Transaction, to the extent that such breach is not cured by such closing date, or any breach by the Company of a representation or warranty in a writing furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, without notice or grace period, constitute an Event of Default with respect to the Company under the Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as applicable, hereby deleted in its sole discretion to terminate the rights and obligations of the Company as servicer under the Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Company (and if the Company is servicing any of the Mortgage Loans in a Securitization Transaction, appoint a successor servicer reasonably acceptable to any Master Servicer for such Securitization Transaction); provided that to the extent that any provision of the Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effectentirety.
(ii) Any failure by the Company, any Subservicer or any Subcontractor to deliver any information, report, certification or accountants' letter when and as required under Section 2.04 or 2.05, including (except as provided below) any failure by the Company to identify pursuant to Section 2.06(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 Company under this Agreement and any applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer or any Depositor, as applicable, in its sole discretion to terminate the rights and obligations of the Company as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement to the contrary) of any compensation to the Company; provided that to the extent that any provision of this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Company as servicer, such provision shall be given effect. Neither the Purchaser, any Master Servicer nor any Depositor shall be entitled to terminate the rights and obligations of the Company pursuant to this subparagraph (b)(ii) if a failure of the Company to identify a Subcontractor "participating in the servicing function" within the meaning of Item 1122 of Regulation AB was attributable solely to the role or functions of such Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any designee of the Purchaser, such as a master servicer) and any Depositor, as applicable, for all reasonable expenses incurred by the Purchaser (or such designee) or such Depositor, as such are incurred, in connection with the termination of the Company 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 Purchaser or any Depositor may have under other provisions of the Agreement and/or any applicable Reconstitution Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
(gg) New Exhibits J, K and L are hereby added containing the form of servicing reports set forth on Exhibit Six hereto. EXHIBIT THREE Special Foreclosure Rights Section
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