MORTGAGEIT, INC. Company and GMAC MORTGAGE CORPORATION Subservicer SUBSERVICING AGREEMENT Dated as of February 1, 2006
EXECUTION
MORTGAGEIT,
INC.
Company
and
GMAC
MORTGAGE CORPORATION
Subservicer
Dated
as
of February 1, 2006
TABLE
OF
CONTENTS
| ARTICLE I DEFINITIONS | 1 | |
|
Section
1.01
|
Defined
Terms.
|
1
|
|
ARTICLE
II SERVICING OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES;
BOOKS AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
|
11 |
|
|
Section
2.01
|
Servicing
of Mortgage Loans.
|
11
|
|
Section
2.02
|
Maintenance
of Servicing Files.
|
11
|
|
Section
2.03
|
Books
and Records.
|
11
|
|
Section
2.04
|
Transfer
of Mortgage Loans.
|
12
|
|
Section
2.05
|
Delivery
of Mortgage Loan Documents.
|
12
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES
|
13
|
|
|
Section
3.01
|
Representations
of the Subservicer.
|
13
|
|
Section
3.02
|
Representations
of the Company.
|
14
|
|
Section
3.03
|
Representations,
Warranties and Covenants of Company Regarding Individual Mortgage
Loans.
As to each Mortgage Loan, the Company hereby represents, warrants
and
covenants to the Subervicer that as of the applicable Effective
Date:
|
15
|
|
ARTICLE
IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
17
|
|
|
Section
4.01
|
Subservicer
to Act as Subservicer.
|
17
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
19
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
19
|
|
Section
4.04
|
Establishment
of Protected Accounts; Deposits in Protected Accounts.
|
20
|
|
Section
4.05
|
Permitted
Withdrawals From the Protected Account.
|
21
|
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
|
22
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
23
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage
Insurance Policies, Collections Thereunder.
|
24
|
|
Section
4.09
|
Transfer
of Accounts.
|
25
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
25
|
|
Section
4.11
|
Blanket
Hazard Insurance.
|
26
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions Insurance.
|
26
|
|
Section
4.13
|
Title,
Management and Disposition of REO Property.
|
27
|
|
Section
4.14
|
Notification
of Adjustments.
|
28
|
|
Section
4.15
|
Compliance
with Applicable Laws.
|
28
|
|
Section
4.16
|
Waiver
of Prepayment Charges.
|
28
|
i
|
ARTICLE
V PAYMENTS TO THE COMPANY
|
29
|
|
|
Section
5.01
|
Remittances.
|
29
|
|
Section
5.02
|
Statements
to the Company and Depositor.
|
30
|
|
ARTICLE
VI
|
|
31
|
|
Section
6.01
|
Monthly
Advances by the Subservicer.
|
31
|
|
Section
6.02
|
Liquidation
Reports.
|
31
|
|
ARTICLE
VII GENERAL SERVICING PROCEDURES
|
32
|
|
|
Section
7.01
|
Assumption
Agreements.
|
32
|
|
Section
7.02
|
Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
|
33
|
|
Section
7.03
|
Servicing
Compensation.
|
33
|
|
Section
7.04
|
Report
on Compliance and Attestation.
|
33
|
|
Section
7.05
|
Subservicer
Compliance Statement.
|
35
|
|
Section
7.06
|
Company’s
Right to Examine Subservicer Records.
|
35
|
|
Section
7.07
|
Compliance
with REMIC Provisions.
|
36
|
|
Section
7.08
|
Non-solicitation.
|
36
|
|
Section
7.09
|
Reporting
Requirements of the Commission and Indemnification.
|
36
|
|
ARTICLE
VIII REPORTS TO BE PREPARED BY SERVICER
|
37
|
|
|
Section
8.01
|
Subservicer
Shall Provide Information as Reasonably Required.
|
37
|
|
ARTICLE
IX THE SUBSERVICER
|
37
|
|
|
Section
9.01
|
Additional
Indemnification by the Subservicer; Third Party Claims.
|
37
|
|
Section
9.02
|
Merger
or Consolidation of the Subservicer.
|
41
|
|
Section
9.03
|
Limitation
on Liability of the Subservicer and Others.
|
41
|
|
Section
9.04
|
Subservicing
Agreements and Successor Subservicer.
|
42
|
|
Section
9.05
|
Subservicer
Not to Resign.
|
43
|
|
Section
9.06
|
No
Transfer of Servicing.
|
43
|
|
ARTICLE
X DEFAULT
|
43
|
|
|
Section
10.01
|
Events
of Default.
|
43
|
|
Section
10.02
|
Waiver
of Defaults.
|
46
|
|
ARTICLE
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
▇▇
|
|
|
Section
11.01
|
Termination.
|
46
|
|
Section
11.02
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-Through
Transfer.
|
46
|
ii
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
48
|
|
|
Section
12.01
|
Successor
to the Subservicer.
|
48
|
|
Section
12.02
|
Amendment.
|
49
|
|
Section
12.03
|
Governing
Law.
|
49
|
|
Section
12.04
|
Notices.
|
49
|
|
Section
12.05
|
Severability
of Provisions.
|
50
|
|
Section
12.06
|
Exhibits
and Schedules.
|
51
|
|
Section
12.07
|
General
Interpretive Principles.
|
51
|
|
Section
12.08
|
Reproduction
of Documents.
|
51
|
|
Section
12.09
|
Confidentiality
of Information.
|
51
|
|
Section
12.10
|
Assignment
by the Company.
|
53
|
|
Section
12.11
|
No
Partnership.
|
54
|
|
Section
12.12
|
Counterparts;
Successors and Assigns.
|
54
|
|
Section
12.13
|
Entire
Agreement.
|
54
|
|
Section
12.14
|
Further
Agreements.
|
54
|
|
Section
12.15
|
Third
Party Beneficiary.
|
54
|
iii
|
EXHIBITS
|
|
|
Exhibit
A
|
Mortgage
Loan Schedule
|
|
Exhibit
B
|
Protected
Account Letter Agreement
|
|
Exhibit
C
|
Escrow
Account Letter Agreement
|
|
Exhibit
D
|
Format
for Monthly Loan Remittance Data
|
|
Exhibit
E
|
Default
Reporting Format
|
|
Exhibit
F
|
Format
for Reporting Realized Losses or Gains
|
|
Exhibit
G
|
Eligibility
Criteria
|
|
Exhibit
H
|
Subservicer’s
Transfer Instructions
|
|
Exhibit
I
|
Form
of Request for Release
|
|
Exhibit
J
|
Form
of Certification Regarding Servicing Criteria to be Addressed in
Report on
Assessment of Compliance
|
|
Exhibit
K
|
Transaction
Parties
|
|
Exhibit
L
|
Form of Annual Certification |
iv
THIS
IS A
SUBSERVICING AGREEMENT, dated as of February 1, 2006 (the “Agreement”), and is
executed between MortgageIT, Inc. (the “Company”) and GMAC Mortgage Corporation
(the “Subservicer”).
W
I T N E
S S E T H :
WHEREAS,
the Company and the Subservicer desire that, from and after the related
Effective Date, the Mortgage Loans which are subject to this agreement
will be
subserviced by the Subservicer on behalf of the Company in accordance
with the
terms and provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and
for other good and valuable consideration, the receipt and adequacy of
which are
hereby acknowledged, the Company and the Subservicer agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan or REO Property
those
mortgage servicing practices of mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located, exercising the same care in
performing those practices that the Subservicer customarily employs and
exercises in servicing and administering mortgage loans for its own account
(including, compliance with all applicable federal, state and local
laws).
Adjustment
Date:
As to
each ARM Loan, the date on which the Mortgage Interest Rate is adjusted
in
accordance with the terms of the related Mortgage Note and
Mortgage.
Agreement:
This
Subservicing Agreement including all exhibits hereto, amendments hereof
and
supplements hereto.
Applicable
Requirements:
As of
the time of reference, with respect to the Mortgage Loans, REO Property
and the
servicing of the Mortgage Loans, all of the following: (i) all contractual
obligations of Company, any Originator or Prior Servicer, or the Mortgage
Loan
Documents, for which Company or, by virtue of this Agreement, Subservicer
is
responsible for or at any time was or hereafter will be responsible;
(ii) all
applicable federal, state and local legal and regulatory requirements
(including, without limitation, statutes, rules, regulations and ordinances
and
including the Privacy Requirements) binding upon Company, Subservicer,
any
Originator or Prior Servicer; (iii) all other applicable requirements
and
guidelines of each governmental agency, board, commission, instrumentality
and
other governmental body or officer having jurisdiction; (iv) all other
applicable judicial and administrative judgments, orders, stipulations,
awards,
writs and injunctions; and (v) Accepted Servicing Practices.
1
ARM
Loan:
A first
lien, conventional, 1-4 family residential Mortgage Loan with an interest
rate
which adjusts from time to time in accordance with the related Index
and is
subject to a Periodic Rate Cap and a Lifetime Rate Cap and which may
permit
conversion to a fixed interest rate.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
Maryland, Minnesota, New York, the Commonwealth of Pennsylvania or the
jurisdiction in which the Subservicer conducts its servicing activities,
or
(iii) a day on which banking and savings and loan institutions in the
States of
Maryland, Minnesota, New York, the Commonwealth of Pennsylvania or the
jurisdiction in which the Subservicer conducts its servicing activities
are
authorized or obligated by law or executive order to be closed.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time,
or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission: The
United States Securities and Exchange Commission.
Company:
MortgageIT, Inc., its successors in interest and assigns.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor
in
accordance with the terms of the related Mortgage Loan Documents.
Custodian:
Deutsche Bank National Trust Company, or such other Custodian as the
Company
shall designate.
Depositor:
Any
Person designated as depositor in connection with any Pass-Through
Transfer.
Determination
Date:
The
15th day of any month, or if such 15th day is not a Business Day, the
first
Business Day immediately preceding such 15th day.
Due
Date:
With
respect to any Mortgage Loan, each day on which payments of principal
and
interest are required to be paid in accordance with the terms of the
related
Mortgage Note, exclusive of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second
day of the
month preceding the month of such Remittance Date and ending on the first
day of
the month of such Remittance Date.
Effective
Date:
With
respect to the Mortgage Loans initially subject hereto, February 1, 2006.
With
respect to additional Mortgage Loans to be subject hereto from time to
time, the
date set forth in the related Transmission (which shall be the closing
date of
any Pass-Through Transfer to which the related Mortgage Loans are
subject).
2
Eligibility
Criteria:
The
eligibility criteria for residential mortgage loans to be delivered by
Company
after the initial Effective Date to be serviced by Subservicer under
this
Agreement, as specified in Exhibit G, as the same may be amended from
time to
time with the mutual consent of both parties. All Mortgage Loans subserviced
by
the Subservicer for the Company under this Agreement shall be subject
to a
securitization transaction for which transaction the Subservicer is the
sole
servicer of all Mortgage Loans.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to
Section
4.06 which shall be entitled “GMAC Mortgage Corporation Escrow Account in trust
for Deutsche Bank National Trust Company, as trustee of MortgageIT Trust
2006-1”
and shall be established at a Qualified Depository.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents,
taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and
any other
payments required to be escrowed by the Mortgagor with the mortgagee
pursuant to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
▇▇▇▇▇▇
▇▇▇:
▇▇▇▇▇▇
▇▇▇, or any successor thereto.
▇▇▇▇▇▇
Mae Guide: The ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing
Guide and
all amendments or additions thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Subservicer pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989,
as amended
from time to time.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
▇▇▇▇▇▇▇
Mac Guide:
The
▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac Servicing Guide and all
amendments
or additions thereto.
Full
Principal Prepayment:
A
Principal Prepayment made by a Mortgagor of the entire principal balance
of a
Mortgage Loan.
GAAP:
Generally accepted accounting principles and procedures, consistently
applied.
High
Cost Loan:
A
residential mortgage loan that is subject to the anti-predatory prohibitions
of
state or local laws and regulations by virtue of the loan’s high interest rate
or total points and fees.
HOEPA:
The
Home Ownership and Equity Protection Act.
3
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to each ARM Loan, the index, as specified in the related Mortgage
Note,
used to determine the Mortgage Interest Rate on each Adjustment Date
on such ARM
Loan.
Index
Rate:
With
respect to each ARM Loan, on each Adjustment Date, the rate per annum
equal to
the Index, calculated as provided in the related Mortgage Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Lifetime
Rate Cap:
With
respect to each ARM Loan, the maximum Mortgage Interest Rate over the
term of
such Mortgage Loan, as specified in the related Mortgage Note.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, short sale or otherwise, other than amounts received
following
the acquisition of an REO Property pursuant to Section 4.13.
Margin:
With
respect to each ARM Loan, the fixed percentage amount set forth in the
related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer:
▇▇▇▇▇
Fargo Bank, N.A., its successors in interest and assigns, or such other
Person
thereto designated by the Company.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each
Mortgage
Loan at the close of business on the Determination Date required to be
advanced
by the Subservicer pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment of principal
and
interest thereon which is payable by the related Mortgagor under the
related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note,
which
creates a lien on real property securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance
with
the provisions of the related Mortgage Note, and in the case of an ARM
Loan, as
adjusted from time to time on each Adjustment Date for such Mortgage
Loan to
equal the Index Rate for such Mortgage Loan plus the Margin for such
Mortgage
Loan, and subject to the limitations on such interest rate imposed by
the
Periodic Rate Cap and the Lifetime Rate Cap.
4
Mortgage
Loan:
An
individual Mortgage Loan described herein and as further identified on
the
Mortgage Loan Schedule, as amended from time to time, which Mortgage
Loan
includes without limitation the Mortgage Loan Documents, the Monthly
Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the original related Mortgage Note with applicable
addenda and riders, the original related Mortgage and the originals of
any
required addenda and riders, the original related assignment and any
original
intervening related assignments, the original related title insurance
policy,
related PMI policy, if any, and the related appraisal report held by
the Company
or by a Custodian on the Company’s behalf.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to
the
Company, which shall be equal to the related Mortgage Interest Rate minus
the
Servicing Fee expressed as a rate per annum.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached hereto as Exhibit A, as supplemented
from
time to time in accordance with the provisions hereof.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by
a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of the debt evidenced by
a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Advance:
Any
Monthly Advance previously made or proposed to be made by the Subservicer
pursuant to Section 5.03 or any Servicing Advance which, in the good
faith
judgment of the Subservicer, will not or, in the case of a proposed advance,
would not, be ultimately recoverable by the Subservicer from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with
respect
to a particular Mortgage Loan. The determination by the Subservicer that
is has
made a Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate of
the Subservicer delivered to the Company and detailing the reasons for
such
determination.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of
the Board,
the President, a Vice President or an Assistant Vice President or by
the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Subservicer, and delivered to the Company as required
by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the other
party.
5
Originator:
Shall
mean, with respect to any Mortgage Loan, the entity or entities that
(a) took
the relevant Mortgagor’s loan application; (b) processed the relevant
Mortgagor’s loan application: and/or (c) closed and/or funded such Mortgage
Loan.
Partial
Principal Prepayment:
A
Principal Prepayment by a Mortgagor in part but not in full of the outstanding
principal balance of a Mortgage Loan.
Participating
Entity:
Any
Person “participating in the servicing function” within the meaning of Item 1122
of Regulation AB.
Pass-Through
Transfer:
The
sale or transfer of same or all of the Mortgage Loans by the Company
to a trust
to be formed as part of a publicly issued or privately placed, rated
or unrated
mortgage-backed securities transaction.
Periodic
Rate Cap:
With
respect to each ARM Loan, the maximum number of percentage points by
which the
Mortgage Interest Rate may increase or decrease on any Adjustment
Date.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations the timely payment of which are fully
guaranteed
by the United States of America or any agency or instrumentality of the
United
States of America the obligations of which are backed by the full faith
and
credit of the United States of America;
(ii) (a)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of
the
United States of America or any state thereof and subject to supervision
and
examination by federal and/or state banking authorities, provided that
the
commercial paper and/or the short-term deposit rating and/or the long-term
unsecured debt obligations or deposits of such depository institution
or trust
company at the time of such investment or contractual commitment providing
for
such investment are rated in one of the two highest rating categories
by each
Rating Agency and (b) any other demand or time deposit or certificate
of deposit
that is fully insured by the FDIC;
(iii) repurchase
obligations with respect to (a) any security described in clause (i)
above or
(b) any other security issued or guaranteed by an agency or instrumentality
of
the United States of America, the obligations of which are backed by
the full
faith and credit of the United States of America, in either case entered
into
with a depository institution or trust company (acting as principal)
described
in clause (ii)(a) above;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that
are
rated in the highest rating categories by each Rating Agency at the time
of such
investment or contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not
be
Permitted Investments to the extent that investments therein will cause
the then
outstanding principal amount of securities issued by such corporation
and held
as Permitted Investments to exceed 10% of the aggregate outstanding principal
balances and amounts of all the Permitted Investments;
6
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date
not more
than one year after the date of issuance thereof) which are rated in
the highest
rating categories by each Rating Agency at the time of such
investment;
(vi) any
other
demand, money market or time deposit, obligation, security or investment
as may
be acceptable to each Rating Agency; and
(vii) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the
United
States of America the obligations of which are backed by the full faith
and
credit of the United States of America (which may include repurchase
obligations
secured by collateral described in clause (i)) and which money market
funds are
rated in one of the two highest rating categories by each Rating
Agency;
provided,
however,
that no
instrument or security shall be a Permitted Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
obligations underlying such instrument or if such security provides for
payment
of both principal and interest with a yield to maturity in excess of
120% of the
yield to maturity at par; and provided further that any such instrument
or
security must be payable on demand or on a specified date not later than
the
Remittance Date on which amounts held therein are required to be
distributed.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage
Loan
during the immediately preceding Due Period in accordance with the terms
thereof.
Prepayment
Interest Shortfall:
On any
Remittance Date, the sum of the differences between (a) the scheduled
interest
portion of the Monthly Payment of such Mortgage Loan, adjusted to the
applicable
Mortgage Loan Remittance Rate and (b) interest actually received in a
Due Period
as a result of a Full Principal Prepayment or Partial Principal Prepayment
or
other unscheduled receipt of principal (including as a result of a liquidation)
on each Mortgage Loan as to which such a payment is received.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance, or any replacement policy therefor
obtained by the Subservicer pursuant to Section 4.08.
7
Prime
Rate:
The
prime rate of U.S. money center banks as published from time to time
in The Wall
Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, full or partial,
which is received in advance of its scheduled Due Date, including any
Prepayment
Charge or premium thereon, and which is not accompanied by an amount
of interest
representing scheduled interest due on any date or dates in any month
or months
subsequent to the month of prepayment.
Prior
Servicer:
All
servicers and subservicers, collectively and individually, other than
Company,
which, at any time prior to the applicable Effective Date, pooled, sold,
serviced or subserviced any of the Mortgage Loans.
Privacy
Requirements:
Means
the obligations imposed by (i) Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act,
15 U.S.C.
§ 6801 et seq.; (ii) the applicable federal regulations implementing such
act
and codified at 12 CFR Parts 40, 216, 332, 573, and/or 16 CFR Part 313;
(iii)
Interagency Guidelines Establishing Standards For Safeguarding Borrower
Information published in final form on February 1, 2001 (such final guidelines
and/or rules the “Interagency Guidelines”) to establish and maintain an
information Security Program; and (iv) other applicable federal, state
and local
laws, rules, regulations, and orders relating to the privacy and security
of
Customer Information, including the federal Fair Credit Reporting Act,
15 U.S.C.
§ 1681 et seq., and similar state laws.
Protected
Account:
The
separate demand account or accounts created and maintained pursuant to
Section
4.04 which shall be entitled “GMAC Mortgage Corporation Protected Account in
trust for Deutsche Bank National Trust Company, as trustee of MortgageIT
Trust
2006-1” and shall be established at a Qualified Depository.
Qualified
Appraiser:
An
appraiser, duly appointed by the Subservicer, who had no interest, direct
or
indirect, in the Mortgaged Property or in any loan made on the security
thereof,
and whose compensation is not affected by the approval or disapproval
of the
Mortgage Loan, which appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Depository:
(a) a
depository, the accounts of which are insured by the FDIC and the short
term
debt ratings and the long term deposit ratings of which are rated in
one of the
two highest rating categories by either of ▇▇▇▇▇’▇ Investors Service, Inc. or
Fitch, Inc., (b) a depository, the short-term debt obligations, or other
short-term deposits of which are rated at least ‘A-2’ and the long-term
unsecured debt obligations of which are rated at least ‘AA-’ by Standard &
Poor's Ratings Service, a division of The McGraw Hill Companies Inc.,
or (c)
GMAC Bank.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states
in which
the Mortgaged Properties are located, duly authorized and licensed in
such
states to transact the applicable insurance business and to write the
insurance
provided, and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
8
Rating
Agency:
Standard & Poor’s Ratings Service, a division of The McGraw Hill Companies
Inc. or ▇▇▇▇▇’▇ Investors Service, Inc.
Reconstitution
Date:
With
respect to any Mortgage Loan, the effective date of a Pass-Through
Transfer.
Reg
AB
Subcontractor:
Any
vendor, subcontractor or other
Person
that is not responsible for the overall servicing (as “servicing” is commonly
understood by participants in the mortgage-backed securities market)
of the
Mortgage Loans but performs one or more discrete functions identified
in Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction
or authority of the Subservicer. A Subcontractor shall not include a
lockbox
provider or a tax or insurance tracking service.
Reg
AB
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Subservicer and
is
responsible for the performance (whether directly or through Reg AB
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Subservicer under this Agreement that
are
identified in Item 1122(d) of Regulation AB.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
the
Commission, or as may be provided by the Commission or its staff from
time to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
The
provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of
the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th day of any month, or if such 18th day is not a Business Day, the
first
Business Day immediately preceding such 18th day.
REO
Disposition:
The
final sale by the Subservicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Subservicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Subservicer on behalf of the Company
as
described in Section 4.13.
9
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Subservicer of its servicing obligations relating
to each
Mortgage Loan and REO Property, including the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, including, without
limitation, valuation and inspection-related fees, (b) any enforcement,
administrative or judicial proceedings, or any legal work or advice specifically
related to servicing the Mortgage Loans, including foreclosures, bankruptcies,
condemnations, drug seizures, elections, foreclosures by subordinate
or superior
lienholders, and other legal actions incidental to the servicing of the
Mortgage
Loans (provided that such expenses are reasonable and that the Subservicer
specifies the Mortgage Loan(s) to which such expenses relate), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged
Property
is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or
may become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage and (e) compliance with
the
obligations under Section 4.08.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Company
shall
pay
to the Subservicer, which shall for a period of one full month,
be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the scheduled principal balance of such Mortgage Loan as
of the
first day of the related Due Period.
Servicing
Fee Rate:
0.03%
per annum.
Servicing
File:
The
documents, records and other items pertaining to a particular Mortgage
Loan, and
any additional documents relating to such Mortgage Loan as are in, or
as may
from time to time come into, the Subservicer’s possession.
Servicing
Officer:
Any
officer of the Subservicer involved in, or responsible for, the administration
and servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Subservicer to the Company upon request, as
such list
may from time to time be amended.
Subservicer:
GMAC
Mortgage Corporation, or any of its successors in interest or any successor
under this Agreement appointed as herein provided.
Transmission:
A
notice, dated as of the related Effective Date, given by the Company
to the
Subservicer, from time to time, pursuant to which additional Mortgage
Loans, as
described on the schedule attached thereto (which schedule shall become
part of
the Mortgage Loan Schedule as of the related Effective Date), are made
subject
to the terms of this Agreement.
Trustee:
The
Person appointed as trustee in connection with any Pass-Through
Transfer.
10
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS
AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Servicing
of Mortgage Loans.
The
Subservicer hereby agrees to service the Mortgage Loans, from and after
the
related Effective Date, pursuant to the terms of this Agreement. The
Mortgage
Loans initially subject to this Agreement are described in the Mortgage
Loan
Schedule attached hereto on the initial Effective Date. Additional Mortgage
Loans may be subject hereto pursuant to a Transmission to the Subservicer
by the
Company, setting forth the Effective Date with respect thereto; provided
that
any such additional Mortgage Loans the Company desires to make subject
to this
Agreement meet the Eligibility Criteria then in effect.
Section
2.02 Maintenance
of Servicing Files.
The
Subservicer shall maintain a Servicing File consisting of all documents
necessary to service the Mortgage Loans. The possession of each Servicing
File
by the Subservicer is for the sole purpose of servicing the related Mortgage
Loan, and such retention and possession by the Subservicer is in a custodial
capacity only. The Subservicer acknowledges that the ownership of each
Mortgage
Loan is vested in the Company. All rights arising out of the Mortgage
Loans
including all funds received on or in connection with the Mortgage Loans
and all
records or documents with respect to the Mortgage Loans prepared by or
which
come into the possession of the Subservicer shall be received and held
by the
Subservicer for the sole purpose of servicing the Mortgage Loans and
such
retention and possession by the Subservicer is in a custodial capacity
only in
trust for the exclusive benefit of the Company as the Company of the
related
Mortgage Loans. Any portion of the related Servicing Files retained by
the
Subservicer shall be appropriately identified in the Subservicer’s computer
system to reflect clearly the ownership of the related Mortgage Loans
by the
Company. The Subservicer shall release its custody of the contents of
the
related Servicing Files only in accordance with written instructions
of the
Company, except when such release is required as incidental to the Subservicer’s
servicing of the Mortgage Loans, such written instructions shall not
be
required.
Section
2.03 Books
and Records.
The
Subservicer shall be responsible for maintaining, and shall maintain,
a complete
set of books and records for the Mortgage Loans which shall be appropriately
identified in the Subservicer’s computer system to clearly reflect the ownership
of the Mortgage Loan by the Company. In particular, the Subservicer shall
maintain in its possession, available for inspection by the Company or
its
designee, upon reasonable notice or reasonable request, and consistent
with
Accepted Servicing Practices, reasonable evidence of compliance with
all
federal, state and local laws, rules and regulations, as applicable,
including
documentation as to the method used in determining the applicability
of the
provisions of the Flood Disaster Protection Act of 1973, as amended,
to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ ▇▇▇ and periodic inspection
reports as required by Section 4.13. To the extent that original documents
are
not required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Subservicer may be in the form
of
microfilm or microfiche or such other reliable means of recreating original
documents, including optical imagery techniques so long as the Subservicer
complies in all material respects with the requirements of the ▇▇▇▇▇▇
Mae
Guide.
11
Section
2.04 Transfer
of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Subservicer
shall
be under no obligation to deal with any Person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan
has been
delivered to the Subservicer in accordance with this Section 2.04 and
the
requirements for such transfer set forth in Sections 10.02 and 11.10
have been
satisfied, as the case may be. Upon receipt of notice of the permitted
transfer,
the Subservicer shall ▇▇▇▇ its books and records to reflect such assignee’s
ownership of the related Mortgage Loans, and the previous owner shall
be deemed
released from its obligations hereunder with respect to such Mortgage
Loans from
and after the date of such sale or transfer without the necessity of
any action
on the part of the Subservicer (except that Articles III and VIII and
Sections
11.03 and 11.04 shall survive such transfer).
Section
2.05 Delivery
of Mortgage Loan Documents.
The
Subservicer shall forward to the Custodian on behalf of the Company original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01
promptly
after their execution; provided, however, that the Subservicer shall
provide the
Custodian on behalf of the Company with a certified true copy of any
such
document submitted for recordation promptly after its execution, and
shall
provide the original of any document submitted for recordation or a copy
of such
document certified by the appropriate public recording office to be a
true and
complete copy of the original promptly after receipt thereof, but in
no event
later than 240 days after its execution, provided, however, that if delivery
is
not completed within 240 days solely due to delays in making such delivery
by
reason of the fact that such documents shall not have been returned by
the
appropriate recording office, the Subservicer shall continue to use its
reasonable best efforts to obtain such documents and effect delivery
as soon as
possible after its receipt thereof.
From
time
to time the Subservicer may have a need for Mortgage Loan Documents to
be
released by the Custodian. If the Subservicer shall require any of the
Mortgage
Loan Documents, the Subservicer shall notify the Custodian in writing
of such
request in the form of request for release attached hereto as Exhibit
I. During
the time that any such documentation is held by the Subservicer, such
possession
is in trust for the benefit of the Company, and the Subservicer shall
return
such documentation to the Custodian upon the request of the Company or
when the
Subservicer’s need therefore no longer exists.
12
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 Representations
of the Subservicer.
The
Subservicer hereby represents, warrants and covenants to the Company
that, as of
the Effective Date:
(a) The
Subservicer is a corporation duly organized, validly existing and in
good
standing under the laws of the Commonwealth of Pennsylvania and has all
licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property
is
located if the laws of such state require licensing or qualification
in order to
conduct business of the type conducted by the Subservicer, and in any
event the
Subservicer is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan and
the
servicing of such Mortgage Loan in accordance with the terms of this
Agreement;
the Subservicer has the full corporate power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement by the Subservicer and the
consummation of the transactions contemplated hereby have been duly and
validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Subservicer (assuming due execution and delivery by
Company),
subject, as to enforceability, to bankruptcy, insolvency and other laws
of
general applicability relating to or affecting creditors' rights and
to general
equity principles; and all requisite corporate action has been taken
by the
Subservicer to make this Agreement valid and binding upon the Subservicer
in
accordance with its terms;
(b) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Subservicer, who is in the business
of
servicing loans;
(c) There
is
no action, suit, proceeding or investigation pending or, to Subservicer’s
knowledge, threatened against the Subservicer or any Reg AB Subservicer
which,
either in any one instance or in the aggregate, would result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Subservicer or any Reg AB Subservicer, or in any material
impairment of the right or ability of the Subservicer or any Reg AB Subservicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Subservicer or any Reg AB Subservicer, or
which
would draw into question the validity of this Agreement or the Mortgage
Loans or
of any action taken or to be contemplated herein, or which would be likely
to
impair materially the ability of the Subservicer or any Reg AB Subservicer
to
perform under the terms of this Agreement;
(d) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Subservicer
of or compliance by the Subservicer with this Agreement, or if required,
such
approval has been obtained prior to the Effective Date;
(e) The
Subservicer is an approved seller/servicer of conventional residential
mortgage
loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, with the facilities, procedures,
and
experienced personnel reasonably necessary for the sound servicing of
mortgage
loans of the same type as the Mortgage Loans. The Subservicer is a HUD
approved
mortgagee and is in good standing to service mortgage loans for ▇▇▇▇▇▇
Mae and
▇▇▇▇▇▇▇ Mac, and, to Subservicer’s knowledge, no event has occurred, including
but not limited to a change in insurance coverage, which would make the
Subservicer unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac eligibility
requirements in any material respect or which would require notification
to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
13
(f) Neither
this Agreement nor any statement, report or other document furnished
or to be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact in any material
respect;
(g) The
Subservicer will not waive any Prepayment Charge unless it is waived
in
accordance with the standard set forth in Section 4.16; and
(h) The
Subservicer will fully furnish, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to the three
national
credit repositories on a monthly basis.
(i) Except
as
disclosed in writing to the Company and the Depositor prior to the Closing
Date:
(i)
the
Subservicer is not aware and has not received notice that any default,
early
amortization or other performance triggering event has occurred as to
any other
securitization due to any act or failure to act of the Subservicer; (ii)
the
Subservicer
has not
been terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Subservicer
as
servicer
has been
disclosed or reported by the Subservicer; (iv) no material
changes to the Subservicer’s
policies or procedures with respect to the servicing function it will
perform
under this Agreement for mortgage loans of a type similar to the Mortgage
Loans
have
occurred during the three-year period immediately preceding the Closing
Date;
(v) there are no aspects of the Subservicer’s financial condition that could
have a material adverse effect on the performance by the
Subservicer
of its
servicing obligations under this Agreement
and (vi)
there are no affiliations, relationships or transactions relating to
the
Subservicer or any Reg
AB
Subservicer with any party listed on Exhibit K hereto of a type described
in
Item 1119 of Regulation AB.
Section
3.02 Representations
of the Company.
The
Company hereby represents, warrants and covenants to the Subservicer
that, as of
the Effective Date:
(a) It
is a
corporation duly organized, validly existing and in good standing under
the laws
of the state of incorporation and has all licenses necessary to carry
on its
business as now being conducted and is licensed, qualified and in good
standing
in each state where a Mortgaged Property is located if the laws of such
state
require licensing or qualification in order to conduct business of the
type
conducted by it, and in any event it is in compliance with the laws of
any such
state to the extent necessary to ensure the enforceability of the related
Mortgage Loan and the servicing of such Mortgage Loan in accordance with
the
terms of this Agreement; it has the full corporate power and authority
to
execute and deliver this Agreement and to perform in accordance herewith;
the
execution, delivery and performance of this Agreement by it and the consummation
of the transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation
of it;
and all requisite corporate action has been taken by it to make this
Agreement
valid and binding upon it in accordance with its terms;
14
(b) Neither
the execution and delivery of this Agreement, or the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of
this Agreement will conflict with or result in a breach of any of its
terms,
articles of incorporation or by-laws or any legal restriction or any
agreement
or instrument to which it is now a party or by which it is bound, or
constitute
a default or result in the violation of any law, rule, regulation, order,
judgment or decree to which it or its property is subject;
(c) There
is
no action, suit, proceeding or investigation pending or, to the Company’s
knowledge, threatened against it which, either in any one instance or
in the
aggregate, would result in any material adverse change in the business,
operations, financial condition, properties or assets of it, or in any
material
impairment of the right or ability of the it to carry on its business
substantially as now conducted, or in any material liability on the part
of it,
or which would draw into question the validity of this Agreement or the
Mortgage
Loans or of any action taken or to be contemplated herein, or which would
be
likely to impair materially the ability of it to perform under the terms
of this
Agreement;
(d) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by it of
or
compliance by it with this Agreement, or if required, such approval has
been
obtained prior to the applicable Effective Date; and
(e) The
selection of the Mortgage Loans to be serviced by the Subservicer pursuant
to
this Agreement was not made in a manner so as to affect adversely the
interests
of the Subservicer.
Section
3.03 Representations,
Warranties and Covenants of Company Regarding Individual Mortgage
Loans.
As to
each Mortgage Loan, the Company hereby represents, warrants and covenants
to the
Subervicer that as of the applicable Effective Date:
(a) Mortgage
Loans as Described.
The
information set forth in the Mortgage Loan Schedule attached hereto as
Exhibit A
and the information contained on the electronic data file delivered to
the
Subservicer is true and correct.
(b) Delivery
of Books and Records.
The
Company will, on or before the applicable Effective Date, deliver, or
cause to
be delivered, to the Subservicer or the Custodian, as applicable, all
of the
books, records, data, files and Mortgage Loan Documents, including records
on
microfiche or its equivalent, reasonably required by the Subservicer
to document
and service each Mortgage Loan; such books, records, data, files and
documents
contain all of the items (including but not limited to hazard insurance
policies, flood insurance policies and private mortgage insurance policies)
which are required by the Applicable Requirements to service the Mortgage
Loans;
are true, accurate and complete in all material respects; and it is reasonable
for Subservicer to rely thereon.
15
(c) Flood
Insurance.
If any
of the Mortgage Loans are secured by Mortgaged Properties located in
Federal
Emergency Management Agency designated flood areas, then (to the extent
required
by Applicable Requirements) flood insurance policies are or will be in
full
force and effect in the amounts required by investors under Applicable
Requirements or are insured through the Company’s “gap coverage” flood insurance
policy as of the applicable Effective Date.
(d) Hazard
Insurance.
As of
the applicable Effective Date, all Mortgaged Properties are and will
be insured
against fire and have extended coverage insurance in the amounts required
by
▇▇▇▇▇▇ Mae under Applicable Requirements; all insurance premiums on such
insurance policies have been or will have been paid in a timely manner;
and
there have been or will have been no fire losses on the Mortgaged Properties
where the Company’s estimate of loss is materially greater than the net recovery
from the fire insurance carrier. To the Company’s knowledge, there have been no
fire losses on the Mortgaged Properties as to which there is a pending
coinsurance claim.
(e) No
Litigation.
There
is not pending or, to the Company’s actual knowledge, threatened litigation, or
any order, injunction, settlement or decree outstanding, against or relating
to
the Mortgage Loans or servicing thereof that could materially and adversely
affect the servicing of the Mortgage Loans, the Mortgage Loans or the
performance by the Company or Subservicer of their respective obligations
under
this Agreement. No Mortgagor is a named plaintiff in any class action
lawsuit.
(f) Application
of Payments.
As of
the applicable Effective Date, all calculations required to be made by
the
Company or Prior Servicers with respect to the amount of principal, interest,
escrow payments and other amounts due and owing by a Mortgagor from time
to time
under each Mortgage Loan have been made in compliance with all Applicable
Requirements. All invoices transmitted to the Mortgagors by the Company
or Prior
Servicers for principal, interest, escrow payments and all other amounts
due and
payable under each Mortgage Loan have been prepared, and the funds collected
from the Mortgagors have been applied for the payment of such amounts,
in
compliance with all Applicable Requirements.
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been satisfied.
(h) High
Cost Loans.
No
Mortgage Loan is a High Cost Loan or subject to HOEPA.
16
(i) Ownership.
With
respect to each Mortgage Loan, the Company is the owner of all rights,
title and
interest in and to the Mortgage Loan (and the servicing rights appurtenant
thereto). Each Mortgage Loan is a valid and collectible obligation of
the
respective Mortgagor. Each Prepayment Charge is a valid and enforceable
provision of the respective Mortgage Loan.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Subservicer
to Act as Subservicer.
The
Subservicer, as independent contract servicer, shall service and administer
the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone, to
do or cause
to be done any and all things in connection with such servicing and
administration which the Subservicer may deem necessary or desirable
and
consistent with the terms of this Agreement and with Accepted Servicing
Practices. Except as otherwise set forth in this Agreement (and to the
extent
consistent with the terms of this Agreement and Accepted Servicing Practices),
the Subservicer shall service the Mortgage Loans in compliance with the
servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, including provisions regarding
the
liquidation of Mortgage Loans, the collection of Mortgage Loan payments,
the
payment of taxes, insurance and other charges, the maintenance of title
insurance, hazard insurance, flood insurance, Primary Mortgage Insurance
Policies, a Fidelity Bond and errors and omissions insurance, all such
coverage
to be maintained with a Qualified Insurer, inspections, the restoration
of
Mortgaged Property, all such coverage to be maintained insurance claims,
management of REO Property, permitted withdrawals with respect to REO
Property,
liquidation reports, and reports of foreclosures and abandonments of
Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage
Loan
Documents, annual statements, and examination of records and facilities.
In the
event of any conflict, inconsistency or discrepancy between any of the
servicing
provisions of this Agreement and any of the servicing provisions of the
▇▇▇▇▇▇
Mae Guide, the provisions of this Agreement shall control and be binding
upon
the Company and the Subservicer. The Company shall, at the request of
Subservicer, deliver powers-of-attorney to the Subservicer sufficient
to allow
the Subservicer as servicer to execute all documentation requiring execution
on
behalf of the Company with respect to the servicing of the Mortgage Loans,
including satisfactions, partial releases, modifications and foreclosure
documentation or, in the alternative, shall as promptly as reasonably
feasible,
execute and return such documentation to the Subservicer.
Consistent
with the terms of this Agreement, the Subservicer may waive, modify or
vary any
term of any Mortgage Loan or consent to the postponement of any such
term or in
any manner grant indulgence to any Mortgagor if in the Subservicer’s reasonable
and prudent determination such waiver, modification, postponement or
indulgence
is not materially adverse to the Company; provided, however, that unless
the
Subservicer has obtained the prior written consent of the Company, the
Subservicer shall not permit any modification with respect to any Mortgage
Loan
that would change the Mortgage Interest Rate, forgive the payment of
principal
or interest, reduce or increase the outstanding principal balance (except
for
actual payments of principal) or change the final maturity date on such
Mortgage
Loan. In the event of any such modification which has been agreed to
in writing
by the Company and which permits the deferral of interest or principal
payments
on any Mortgage Loan, the Subservicer shall, on the Business Day immediately
preceding the related Remittance Date in any month in which any such
principal
or interest payment has been deferred, deposit in the Protected Account
from its
own funds, in accordance with Section 4.04 and Section 5.03, the difference
between (a) such month’s principal and one month’s interest at the related
Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage
Loan and (b) the amount paid by the Mortgagor. The Subservicer shall
be entitled
to reimbursement for such advances to the same extent as for all other
advances
pursuant to Section 4.05. Without limiting the generality of the foregoing,
the
Subservicer shall continue, and is hereby authorized and empowered, to
prepare,
execute and deliver, all instruments of satisfaction or cancellation,
or of
partial or full release, discharge and all other comparable instruments,
with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
Notwithstanding anything herein to the contrary, the Subservicer may
not enter
into a forbearance agreement or similar arrangement with respect to any
Mortgage
Loan which runs more than 180 days after the first delinquent Due Date.
Any such
agreement shall be approved by Company and, if required, by the Primary
Mortgage
Insurance Policy insurer.
17
Notwithstanding
anything in this Agreement to the contrary, if a REMIC election is made
and the
Mortgage Loans and REO Properties are the sole property of such REMIC,
the
Subservicer shall not (unless the related Mortgagor is in default with
respect
to the Mortgage Loan or such default is, in the judgment of the Subservicer,
reasonably foreseeable) make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would both (i) effect an exchange
or
reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) and (ii) cause the related REMIC
to fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions” after the “startup date” of such REMIC under
the REMIC Provisions.
The
Subservicer shall perform all of its servicing responsibilities hereunder
or may
cause a Reg AB Subservicer or Reg AB Subcontractor to perform any such
servicing
responsibilities on its behalf, but the use by the Subservicer of a Reg
AB
Subservicer or Reg AB Subcontractor shall not release the Subservicer
from any
of its obligations hereunder and the Subservicer shall remain responsible
hereunder for all acts and omissions of each Reg AB Subservicer or Reg
AB
Subcontractor as fully as if such acts and omissions were those of the
Subservicer. Any such Reg AB Subservicer or Reg AB Subcontractor must
be a
▇▇▇▇▇▇ ▇▇▇ approved seller/servicer or a ▇▇▇▇▇▇▇ Mac approved seller/servicer
in
good standing and no event shall have occurred, including but not limited
to, a
change in insurance coverage, which would make it unable to comply with
the
eligibility requirements for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇
Mac, or which would require notification to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
The
Subservicer shall pay all fees and expenses of each Reg AB Subservicer
or Reg AB
Subcontractor from its own funds, and a Reg AB Subservicer’s or Reg AB
Subcontractor’s fee shall not exceed the Servicing Fee.
At
the
cost and expense of the Subservicer, without any right of reimbursement
from the
Protected Account, the Subservicer shall be entitled to terminate the
rights and
responsibilities of a Reg AB Subservicer or Reg AB Subcontractor and
arrange for
any servicing responsibilities to be performed by a successor Reg AB
Subservicer
or Reg AB Subcontractor meeting the requirements in the preceding paragraph;
provided, however, that nothing contained herein shall be deemed to prevent
or
prohibit the Subservicer, at the Subservicer’s option, from electing to service
the related Mortgage Loans itself. In the event that the Subservicer’s
responsibilities and duties under this Agreement are terminated pursuant
to
Section 8.04, 9.01 or 10.01, and if requested to do so by the Company,
the
Subservicer shall at its own cost and expense terminate the rights and
responsibilities of each Reg AB Subservicer or Reg AB Subcontractor effective
as
of the date of termination of the Subservicer. The Subservicer shall
pay all
fees, expenses or penalties necessary in order to terminate the rights
and
responsibilities of each Reg AB Subservicer or Reg AB Subcontractor from
the
Subservicer’s own funds without reimbursement from the Company.
18
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Subservicer and a Reg AB Subservicer or Reg AB Subcontractor
or any
reference herein to actions taken through a Reg AB Subservicer or Reg
AB
Subcontractor or otherwise, the Subservicer shall not be relieved of
its
obligations to the Company and shall be obligated to the same extent
and under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans. The Subservicer shall be entitled to enter into an
agreement
with a Reg AB Subservicer or Reg AB Subcontractor for indemnification
of the
Subservicer by the Reg AB Subservicer or Reg AB Subcontractor and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement and any other transactions or services relating
to the
Mortgage Loans involving a Reg AB Subservicer or Reg AB Subcontractor
shall be
deemed to be between such Reg AB Subservicer or Reg AB Subcontractor
and
Subservicer alone, and the Company shall have no obligations, duties
or
liabilities with respect to such Subservicer including no obligation,
duty or
liability of Company to pay such Reg AB Subservicer’s or Reg AB Subcontractor’s
fees and expenses. For purposes of distributions and advances by the
Subservicer
pursuant to this Agreement, the Subservicer shall be deemed to have received
a
payment on a Mortgage Loan when a Reg AB Subservicer or Reg AB Subcontractor
has
received such payment.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Subservicer shall proceed with reasonable diligence
and in
accordance with Accepted Servicing Practices, to collect all payments
due under
each Mortgage Loan when the same shall become due and payable. Further,
the
Subservicer shall take reasonable care in ascertaining and estimating
annual
ground rents, taxes, assessments, water rates, fire and hazard insurance
premiums, mortgage insurance premiums, and all other charges that, as
provided
in the Mortgage Loan Documents, will become due and payable to the end
that the
installments payable by the Mortgagors will be sufficient to pay such
charges as
and when they become due and payable.
Section
4.03 Realization
Upon Defaulted Mortgage Loans.
19
The
Subservicer shall use its commercially reasonable efforts, consistent
with
Accepted Servicing Practices, to either (i) foreclose upon, repossess or
otherwise comparably convert the ownership of properties securing such
of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 4.01 or (ii) as an alternative to foreclosure, sell
such
defaulted Mortgage Loans at fair market value to third-parties, if the
Subservicer reasonably believes that such sale would maximize proceeds
to the
Company (on a present value basis) with respect to those Mortgage Loans.
Foreclosure or comparable proceedings shall be initiated within ninety
(90) days
of default for Mortgaged Properties for which no satisfactory arrangements
can
be made for collection of delinquent payments, subject to state and federal
law
and regulation. The Subservicer shall use its reasonable efforts to realize
upon
defaulted Mortgage Loans in such manner as will maximize the receipt
of
principal and interest by the Company, taking into account, among other
things,
the timing of foreclosure proceedings. The Subservicer shall notify the
Company
of its intent to commence foreclosure proceedings with respect to any
Mortgage
Loan. The foregoing is subject to the provisions that, in any case in
which any
Mortgaged Property shall have suffered damage, the Subservicer shall
not be
required to expend its own funds toward the restoration of such property
unless
it shall determine in its discretion (i) that such restoration will increase
the
proceeds of liquidation of the related Mortgage Loan to the Company after
reimbursement to itself for such expenses, and (ii) that such expenses
will be
recoverable by the Subservicer through Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Section
4.05.
The Subservicer shall be responsible for all costs and expenses incurred
by it
in any such proceedings or functions as Servicing Advances; provided,
however,
that it shall be entitled to reimbursement therefor as provided in Section
4.05.
Notwithstanding anything to the contrary contained herein, in connection
with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the
Subservicer has reasonable cause to believe that a Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes, or if the Company
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. Upon completion of the inspection, the Subservicer shall promptly
provide the Company with a written report of the environmental inspection.
After
reviewing the environmental inspection report, the Company shall direct
the
Subservicer as to how the Subservicer shall proceed with respect to the
Mortgaged Property, and the Subservicer shall follow the Company’s directions
with respect thereto.
Section
4.04 Establishment
of Protected Accounts; Deposits in Protected Accounts.
The
Subservicer shall segregate and hold all funds collected and received
pursuant
to each Mortgage Loan separate and apart from any of its own funds and
general
assets and shall establish and maintain one or more Protected Accounts.
Any
funds in a Protected Account may be invested, but only in Permitted Investments
for the benefit of the Company (with any income earned thereon for the
benefit
of the Subservicer). Funds deposited in the Protected Account may be
drawn on by
the Subservicer only in accordance with Section 4.05. The creation of
any
Protected Account shall be evidenced by an account certification in the
form
shown in Exhibit B hereto. The original of such account certification
shall be
furnished to the Company upon reasonable request. The Subservicer acknowledges
and agrees that the Subservicer shall bear any losses incurred with respect
to
Permitted Investments. The amount of any such losses shall be immediately
deposited by the Subservicer in the Protected Account, out of the Subservicer’s
own funds, with no right to reimbursement therefor.
The
Subservicer shall deposit in the Protected Account within two (2) Business
Days
of Subservicer's receipt, and retain therein, the following
collections:
20
(i) all
payments on account of principal, including Principal Prepayments on
the
Mortgage Loans and all Prepayment Charges;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the
related
Mortgage Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) any
net
amounts received by the Subservicer in connection with any REO Property
pursuant
to Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant
to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable law or otherwise held in a suspense
account by Subservicer;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property other than proceeds
to be
held in the Escrow Account and applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Accepted
Servicing Practices, the Mortgage Loan Documents or applicable law;
(vii) any
Monthly Advances as provided in Section 5.03;
(viii) any
amounts required to be deposited in the Protected Account pursuant to
Sections
4.01, 4.14, 6.01 and 6.02; and
(ix) with
respect to each Full Principal Prepayment or Partial Principal Prepayment,
any
Prepayment Interest Shortfall, to the extent of the Subservicer’s aggregate
Servicing Fee received with respect to the related Due Period.
The
foregoing requirements for deposit in the Protected Account shall be
exclusive,
it being understood and agreed that, without limiting the generality
of the
foregoing, payments in the nature of late payment charges and assumption
fees,
to the extent permitted by Section 6.01, need not be deposited by the
Subservicer in the Protected Account.
Section
4.05 Permitted
Withdrawals From the Protected Account.
The
Subservicer may, from time to time, make withdrawals from the Protected
Account
for the following purposes:
(i) to
make
payments to the Company in the amounts and in the manner provided for
in Section
5.01;
(ii) to
reimburse itself for Monthly Advances, the Subservicer’s right to reimburse
itself pursuant to this subclause (ii) being limited to amounts received
on the
related Mortgage Loan which represent late collections (net of the related
Servicing Fees) of principal and/or interest respecting which any such
Monthly
Advance was made;
21
(iii) to
reimburse itself for unreimbursed Servicing Advances and Monthly Advances,
the
Subservicer’s right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to Liquidation Proceeds, Condemnation
Proceeds, and Insurance Proceeds and REO Disposition Proceeds related
to such
Mortgage Loan;
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in
the
Protected Account (all such interest to be withdrawn monthly not later
than each
Remittance Date) and (b) any Servicing Fee to which the Subservicer is
entitled
in accordance with the terms hereof to the extent such Servicing Fee
has not
been paid to or retained by the Subservicer;
(v) to
reimburse itself for any Nonrecoverable Advances;
(vi) to
transfer funds to another Qualified Depository in accordance with Section
4.09
hereof;
(vii) to
remove
funds deposited in the Protected Account in error by the Subservicer;
(viii) to
reimburse itself as provided in Section 8.01 and Section 8.03 hereof;
and
(ix) to
clear
and terminate the Protected Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Subservicer shall segregate and hold all funds collected and received
pursuant
to each Mortgage Loan which constitute Escrow Payments separate and apart
from
any of its own funds and general assets and shall establish and maintain
one or
more Escrow Accounts. Any funds deposited in an Escrow Account may be
invested
in Permitted Investments. Funds deposited in an Escrow Account may be
drawn on
by the Subservicer in accordance with Section 4.07. The creation of any
Escrow
Account shall be evidenced by an account certification in the form shown
in
Exhibit C. The original of such account certification shall be furnished
to the
Company upon request. The Subservicer acknowledges and agrees that the
Subservicer shall bear any losses incurred with respect to Permitted
Investments. The amount of any such losses shall be immediately deposited
by the
Subservicer in the Escrow Account out of the Subservicer’s own funds, with no
right to reimbursement therefor.
The
Subservicer shall deposit in the Escrow Account or Accounts within two
(2)
Business Days of Subservicer's receipt, and retain therein:
22
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms
of this
Agreement; and
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair
of any
Mortgaged Property (unless otherwise held in a suspense account).
The
Subservicer shall make withdrawals from an Escrow Account only to effect
such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except
as provided
in Section 4.07, the Subservicer shall be entitled to retain any interest
paid
on funds deposited in an Escrow Account by the Qualified
Depository.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Subservicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, fire
and
hazard insurance premiums, Primary Mortgage Insurance Policy premiums,
if
applicable, and comparable items;
(ii) to
reimburse the Subservicer for any Servicing Advance made by the Subservicer
with
respect to a related Mortgage Loan but only from amounts received on
the related
Mortgage Loan which represent late payments or collections of Escrow
Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Protected Account in connection with an acquisition of
REO
Property;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Subservicer, or to the Mortgagor to the extent required by law, any
interest
paid on the funds deposited in the Escrow Account;
(vii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(viii) to
remove
funds placed in an Escrow Account in error by the Subservicer; and
(ix) to
clear
and terminate the Escrow Account on the termination of this Agreement.
23
As
part
of its servicing duties, the Subservicer shall pay to the Mortgagors
interest on
funds in an Escrow Account, to the extent required by law, and to the
extent
that interest earned on funds in the Escrow Account is insufficient,
shall pay
such interest from its own funds, without any reimbursement
therefor.
Section
4.08 Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage
Insurance
Policies, Collections Thereunder.
With
respect to each Mortgage Loan, the Subservicer shall maintain accurate
records
reflecting the status of ground rents, taxes, assessments, water rates
and other
charges which are or may become a lien upon the Mortgaged Property and
the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for
the
payment of such charges, including renewal premiums and shall effect
payment
thereof prior to the applicable penalty or termination date and at a
time
appropriate for securing maximum discounts allowable, employing for such
purpose
deposits of the Mortgagor in the Escrow Account which shall have been
estimated
and accumulated by the Subservicer in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Subservicer shall
determine that any such payments are made by the Mortgagor when due.
The
Subservicer assumes full responsibility for the timely payment of all
such bills
and shall effect timely payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments and shall make Servicing Advances from its own funds
to effect
such payments to the extent necessary.
The
Subservicer shall maintain in full force and effect Primary Mortgage
Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage
Loan for
which such coverage is herein required. Such coverage will be maintained
until
the ratio of the current outstanding principal balance of the related
Mortgage
Loan to the appraised value of the related Mortgaged Property, based
on the most
recent appraisal of the Mortgaged Property performed by a Qualified Appraiser,
such appraisal to be included in the Servicing File, is reduced to an
amount for
which ▇▇▇▇▇▇ ▇▇▇ no longer requires such insurance to be maintained.
The
Subservicer shall not cancel or refuse to renew any Primary Mortgage
Insurance
Policy that is required to be kept in force under this Agreement unless
a
replacement Primary Mortgage Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with a Qualified Insurer. The
Subservicer
shall not take any action which would result in noncoverage under any
applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions
of the
Subservicer would have been covered thereunder. In connection with any
assumption or substitution agreement entered into or to be entered into
pursuant
to Section 6.01, the Subservicer shall promptly notify the insurer under
the
related Primary Mortgage Insurance Policy, if any, of such assumption
or
substitution of liability in accordance with the terms of such policy
and shall
take all actions which may be required by such insurer as a condition
to the
continuation of coverage under the Primary Mortgage Insurance Policy.
If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Subservicer shall obtain a replacement
Primary
Mortgage Insurance Policy as provided above.
24
In
connection with its activities as servicer, the Subservicer agrees to
prepare
and present, on behalf of itself and the Company, claims to the insurer
under
any Primary Mortgage Insurance Policy in a timely fashion in accordance
with the
terms of such Primary Mortgage Insurance Policy and, in this regard,
to take
such action as shall be necessary to permit recovery under any Primary
Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Subservicer under any Primary Mortgage Insurance
Policy shall be deposited in the Protected Account, subject to withdrawal
pursuant to Section 4.05.
Section
4.09 Transfer
of Accounts.
The
Subservicer may transfer the Protected Account or the Escrow Account
to a
different Qualified Depository from time to time. The Subservicer shall
notify
the Company of any such transfer.
Section
4.10 Maintenance
of Hazard Insurance.
The
Subservicer shall cause to be maintained for each Mortgage Loan fire
and hazard
insurance with extended coverage as is customary in the area where the
Mortgaged
Property is located in an amount which is equal to the lesser of (i)
the maximum
insurable value of the improvements securing such Mortgage Loan and (ii)
the
outstanding principal balance of the Mortgage Loan. If the Mortgaged
Property is
in an area identified in the Federal Register by the Federal Emergency
Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Subservicer will
cause to
be maintained a flood insurance policy meeting the requirements of the
current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the
maximum
insurable value of the improvements securing such Mortgage Loan and (iii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Subservicer shall also maintain
on each
REO Property, fire and hazard insurance with extended coverage in an
amount
which is at least equal to the maximum insurable value of the improvements
which
are a part of such property, liability insurance and, to the extent required
and
available under the Flood Disaster Protection Act of 1973, as amended,
flood
insurance in an amount as provided above. Any amounts collected by the
Subservicer under any such policies other than amounts to be deposited
in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance
with the
Subservicer’s normal servicing procedures, shall be deposited in the Protected
Account, subject to withdrawal pursuant to Section 4.05, unless otherwise
held
in a suspense account by the Subservicer. It is understood and agreed
that no
other additional insurance need be required by the Subservicer or the
Mortgagor
or maintained on property acquired in respect of the Mortgage Loans,
other than
as provided in the ▇▇▇▇▇▇ Mae Guide or such applicable state or federal
laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Subservicer and its successors
and/or
assigns and shall provide for at least thirty days prior written notice
of any
cancellation, reduction in the amount or material change in coverage
to the
Subservicer. The Subservicer shall not interfere with the Mortgagor’s freedom of
choice in selecting either his insurance carrier or agent; provided,
however,
that the Subservicer shall not accept any such insurance policies from
insurance
companies unless such companies currently reflect a General Policy Rating
in
Best’s Key Rating Guide currently acceptable to ▇▇▇▇▇▇ ▇▇▇ and are licensed
to
do business in the state wherein the property subject to the policy is
located.
All insurance policies maintained pursuant to this Section 4.10 shall
be
maintained with a Qualified Insurer.
25
Section
4.11 Blanket
Hazard Insurance.
In
the
event that the Subservicer shall obtain and maintain a blanket policy
with a
Qualified Insurer insuring against fire and hazards of extended coverage
on all
of the Mortgage Loans, then, to the extent such policy names the Company
as loss
payee and provides coverage in an amount equal to the amount required
under
Section 4.10, and otherwise complies with the requirements of Section
4.10, the
Subservicer shall be deemed conclusively to have satisfied its obligations
under
Section 4.10, it being understood and agreed that such blanket policy
may
contain a deductible clause, in which case the Subservicer shall, in
the event
that there shall not have been maintained on the related Mortgaged Property
a
policy complying with Section 4.10, and there shall have been a loss
which would
have been covered by such policy, deposit in the Protected Account the
difference, if any, between the amount that would have been payable under
a
policy complying with Section 4.10 and the amount paid under such blanket
policy. Upon the request of the Company, the Subservicer shall cause
to be
delivered to the Company a certified true copy of such policy and a statement
from the insurer thereunder that such policy shall in no event be terminated
or
materially modified without 30 days prior written notice to the
Company.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Subservicer shall maintain, at its own expense, with a Qualified Insurer,
a
blanket Fidelity Bond and an errors and omissions insurance policy, with
broad
coverage with responsible companies that meet the requirements of ▇▇▇▇▇▇
Mae on
all officers, employees and other persons acting in any capacity with
regard to
the Mortgage Loans and who handle funds, money, documents and papers
relating to
the Mortgage Loans. The Fidelity Bond and errors and omissions insurance
shall
be in the form of the Mortgage Banker’s Blanket Bond and shall protect and
insure the Subservicer against losses, including forgery, theft, embezzlement,
fraud, errors and omissions and negligent acts of such persons. Such
Fidelity
Bond and errors and omissions insurance shall also protect and insure
the
Subservicer against losses in connection with the failure to maintain
any
insurance policies required pursuant to this Agreement and the release
or
satisfaction of a Mortgage Loan without having obtained payment in full
of the
indebtedness secured thereby. No provision of this Section 4.12 requiring
the
Fidelity Bond and errors and omissions insurance shall diminish or relieve
the
Subservicer from its duties and obligations as set forth in this Agreement.
The
minimum coverage under any such Fidelity Bond and insurance policy shall
be at
least equal to the corresponding amounts acceptable to ▇▇▇▇▇▇ ▇▇▇ in
the ▇▇▇▇▇▇
Mae Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The Subservicer
shall,
upon request of Company, deliver to the Company a certificate from the
surety
and the insurer as to the existence of the Fidelity Bond and errors and
omissions insurance policy and shall obtain a statement from the surety
and the
insurer that such Fidelity Bond or insurance policy shall in no event
be
terminated or materially modified without thirty days prior written notice
to
the Company. The Subservicer shall notify the Company within five Business
Days
of receipt of notice that such Fidelity Bond or insurance policy will
be, or has
been, materially modified or terminated. The Company and its successors
or
assigns as their interests may appear must be named as loss payees on
the
Fidelity Bond and as additional insured on the errors and omissions
policy.
26
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure
or by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken
in the
name of the Company or its designee. Any such Person or Persons holding
such
title other than the Company shall acknowledge in writing that such title
is
being held as nominee for the benefit of the Company.
The
Subservicer shall assume the responsibility for marketing each REO Property
in
accordance with Accepted Servicing Practices. Thereafter, the Subservicer
shall
continue to provide certain administrative services to the Company relating
to
such REO Property as set forth in this Section 4.13. The REO Property
must be
sold within three years following the end of the calendar year of the
date of
acquisition if a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held, unless (i)
the Company
shall have been supplied with an Opinion of Counsel (at the Company’s expense)
to the effect that the holding by the related trust of such Mortgaged
Property
subsequent to such three-year period (and specifying the period beyond
such
three-year period for which the Mortgaged Property may be held) will
not result
in the imposition of taxes on “prohibited transactions” of the related trust as
defined in Section 860F of the Code, or cause the related REMIC to fail
to
qualify as a REMIC, in which case the related trust may continue to hold
such
Mortgaged Property (subject to any conditions contained in such Opinion
of
Counsel), or (ii) the Company or the Subservicer shall have applied for,
prior
to the expiration of such three-year period, an extension of such three-year
period in the manner contemplated by Section 856(e)(3) of the Code, in
which
case the three-year period shall be extended by the applicable period.
If a
period longer than three years is permitted under the foregoing sentence
and is
necessary to sell any REO Property, the Subservicer shall report monthly
to the
Company as to progress being made in selling such REO Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made,
no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf
of the
related trust or sold in such a manner or pursuant to any terms that
would (i)
cause such Mortgaged Property to fail to qualify at any time as “foreclosure
property” within a meaning of Section 860G(a)(8) of the Code, (ii) subject the
related trust to the imposition of any federal or state income taxes
on “net
income from foreclosure property” with respect to such Mortgaged Property within
the meaning of Section 860G(c) of the Code, or (iii) cause the sale of
such
Mortgaged Property to result in the receipt by the related trust or any
income
from non-permitted assets as described in Section 860F(a) (2)(B) of the
Code,
unless the Subservicer has agreed to indemnify and hold harmless the
related
trust with respect to the imposition of any such taxes.
27
The
Subservicer shall, either itself or through an agent selected by the
Subservicer, and in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide and Accepted
Servicing
Practices, manage, conserve, protect and operate each REO Property. Each
REO
Disposition shall be carried out by the Subservicer at such price and
upon such
terms and conditions as the Subservicer deems to be in the best interest
of the
Company and as are approved in writing by the Company. The REO Disposition
Proceeds from the sale of the REO Property shall be promptly deposited
in the
Protected Account. As soon as practical thereafter, the expenses of such
sale
shall be paid and the Subservicer shall reimburse itself for any related
Servicing Advances, or Monthly Advances made pursuant to Section
5.03.
The
Subservicer shall cause each REO Property to be inspected promptly upon
the
acquisition of title thereto and shall cause each REO Property to be
inspected
at least monthly thereafter or more frequently as may be required by
the
circumstances. The Subservicer shall make or cause the inspector to make
a
written report of each such inspection. Such reports shall be retained
in the
Servicing File and copies thereof shall be forwarded by the Subservicer
to the
Company.
Section
4.14 Notification
of Adjustments.
With
respect to each Mortgage Loan, the Subservicer shall adjust the Mortgage
Interest Rate on the related Adjustment Date in compliance with requirements
of
applicable law and the related electronic data received on the Mortgage
and
Mortgage Note. The Subservicer shall execute and deliver any and all
necessary
notices required under applicable law and the terms of the related electronic
data received on the Mortgage Note and Mortgage regarding the Mortgage
Interest
Rate adjustments. The Subservicer shall promptly, upon written request
by the
Company, deliver to the Company the information contained in such notifications
and any additional applicable data regarding such adjustments and the
methods
used to calculate and implement such adjustments. Upon the discovery
by the
Subservicer or the receipt of notice from the Company that the Subservicer
has
failed to adjust a Mortgage Interest Rate in accordance with the terms
of the
related Mortgage Note and Mortgage, the Subservicer shall immediately
deposit in
the Protected Account from its own funds the amount of any interest loss
or
deferral caused to the Company thereby.
Section
4.15 Compliance
with Applicable Laws.
All
requirements of any federal, state or local law applicable to the servicing
of
the Mortgage Loans will be complied with by the Subservicer in all material
respects.
Section
4.16 Waiver
of Prepayment Charges.
The
Subservicer shall not waive any Prepayment Charge unless: (i) such Prepayment
Charge is unenforceable in accordance with applicable law or the collection
of
such related Prepayment Charge would otherwise violate applicable law,
(ii) such
waiver is standard and customary in servicing similar mortgage loans
to the
Mortgage Loans (including any waiver of a Prepayment Charge in connection
with a
refinancing of a Mortgage Loan related to a default or a reasonably foreseeable
default), or (iii) such waiver, in the reasonable judgment of the Subservicer,
would maximize recovery of total proceeds from the Mortgage Loan, taking
into
account the value of such Prepayment Charge and the related Mortgage
Loan and
provided that the Company has consented to any such waiver made pursuant
to
clauses (ii) and (iii) above. In no event will the Subservicer waive
a
Prepayment Charge in connection with a refinancing of a Mortgage Loan
that is
not related to a default or a reasonably foreseeable default. If a Prepayment
Charge is waived, but does not meet the standards described above, then
the
Subservicer is required to pay the amount of such waived Prepayment Charge
from
its own funds without any right of reimbursement by remitting such amount
to the
Company by the Remittance Date.
28
ARTICLE
V
PAYMENTS
TO THE COMPANY
Section
5.01 Remittances.
(a) On
each
Remittance Date the Subservicer shall remit, by wire transfer of immediately
available funds, to the Company (or to ▇▇▇▇▇ Fargo Bank, N.A., on its
behalf)
(a) all amounts deposited in the Protected Account as of the close of
business
on the related Determination Date (net of charges against or withdrawals
from
the Protected Account pursuant to Section 4.05), plus (b) all amounts,
if any,
which the Subservicer is obligated to distribute pursuant to Section
5.03, minus
(c) any amounts attributable to Principal Prepayments received after
the end of
the preceding month which amounts shall be remitted on the following
Remittance
Date, together with any additional interest required to be deposited
in the
Protected Account in connection with such Principal Prepayment in accordance
with Section 4.04(ix); minus (d) any amounts attributable to Monthly
Payments
collected but due on a Due Date or Dates subsequent to the first day
of the
month of the Remittance Date, which amounts shall be remitted on the
related
Remittance Date next succeeding the Due Period for such amounts.
(b) With
respect to any remittance made by the Subservicer after the Remittance
Date on
which such payment was due, the Subservicer shall pay to the Company
interest on
any such late payment at an annual rate equal to the Prime Rate, adjusted
as of
the date of each change, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the
Protected
Account by the Subservicer on the date such late payment is made and
shall cover
the period commencing with the day following such Remittance Date and
ending
with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable on the
next
succeeding related Remittance Date. The payment by the Subservicer of
any such
interest shall not be deemed an extension of time for payment or a waiver
of any
Event of Default by the Subservicer.
(c) With
respect to any amounts remitted to ▇▇▇▇▇ Fargo Bank, N.A., the Subservicer
shall
remit, by wire transfer of immediately available funds to:
MortgageIT
Trust 2006-1
▇▇▇▇▇
Fargo Bank, N.A.
ABA#
▇▇▇▇▇▇▇▇▇
SAS
Clearing
Account
#
▇▇▇▇▇▇▇▇▇▇
For
Further Credit to: MortgageIT 2006-1, Account # ▇▇▇▇▇▇▇▇
29
Section
5.02 Statements
to the Company and Depositor.
(a) Not
later
than the tenth (10th) calendar day, or if such day is not a Business
Day, the
first Business Day immediately preceding the tenth calendar day of the
month of
the related Remittance Date, the Subservicer shall furnish to the Company
(or to
▇▇▇▇▇ Fargo Bank, N.A., on its behalf) a monthly remittance advice in
the format
set forth in Exhibit D attached hereto (or in such other format mutually
agreed
to by the Subservicer and the Company), with regard to monthly loan remittance
data and Exhibit E (or in such other format mutually agreed to by the
Subservicer and the Company) with respect to defaulted mortgage loans,
with a
trial balance report attached thereto, and such other loan level information
reasonably available to the Subservicer and requested by the Company.
The
Subservicer shall also furnish to the Company (or to ▇▇▇▇▇ Fargo Bank,
N.A., on
its behalf) (in such format mutually agreed to by the Subservicer and
the
Company) a monthly report detailing loan level Prepayment Charges collected
and/or waived by the Subservicer in accordance with Section 4.16.
(b) The
Subservicer shall promptly notify the Company (i) of any legal proceedings
pending against the Subservicer of the type described in Item 1117 (§
229.1117) of
Regulation AB and (ii) if the Subservicer shall become (but only to the
extent
not previously disclosed to the Company) at any time an affiliate of
any of the
parties listed on Exhibit K to this Agreement.
For
the
purpose of satisfying the reporting obligations under the Exchange Act
with
respect to the issuance of asset-backed securities, the Subservicer
shall
provide to the
Company prompt
notice of the occurrence of any of the following: any event of default
under the
terms of this Agreement, any merger, consolidation or sale of substantially
all
of the assets of the Subservicer,
the
Subservicer’s
engagement of any Reg AB Subservicer, Reg AB Subcontractor or vendor
to perform
or assist in the performance of any of the Subservicer’s
obligations under this Agreement, any material litigation or government
proceedings involving the Subservicer,
and any
affiliation or other significant relationship between the Subservicer
and
other transaction parties.
(c) Not
later
than ten days prior to the deadline for the filing of any distribution
report on
Form 10-D in respect of any securitization transaction that includes
any of the
Mortgage Loans serviced by the Subservicer, the Subservicer shall, to
the extent
the Subservicer has knowledge, provide to the party responsible for filing
such
report (including, if applicable, the Master Servicer) notice of the
occurrence
of any of the following events along with all information, data and materials
related thereto as may be required to be included in the related distribution
report on Form 10-D (as specified in the provisions of Regulation AB
referenced
below:
(i) Any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
30
(ii) Material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) Information
regarding new asset-backed securities issuances backed by the same pool
assets,
any pool asset changes (such as, additions, substitutions or repurchases)
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(d) With
respect to any reports delivered to ▇▇▇▇▇ Fargo Bank, N.A., the Subservicer
shall deliver such reports to:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
MortgageIT 2006-1
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE
VI
Section
6.01 Monthly
Advances by the Subservicer.
On
the
Business Day immediately preceding each Remittance Date, the Subservicer
shall
deposit in the Protected Account from its own funds or from amounts held
for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the
Mortgage
Loans during the applicable Due Period and which were delinquent at the
close of
business on the immediately preceding Determination Date or which were
deferred
pursuant to Section 4.01. Any amounts held for future distribution and
so used
shall be replaced by the Subservicer by deposit in the Protected Account
on or
before any future Remittance Date if funds in the Protected Account on
such
Remittance Date shall be less than payments to the Company required to
be made
on such Remittance Date. The Subservicer's obligation to make such Monthly
Advances as to any Mortgage Loan will continue through the last Monthly
Payment
due prior to the payment in full of the Mortgage Loan, or through the
last
Remittance Date prior to the Remittance Date for the distribution of
all
Liquidation Proceeds and other payments or recoveries (including REO
Disposition
Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect
to the
Mortgage Loan; provided, however, that such obligation shall cease if
the
Subservicer determines, in its sole reasonable opinion, that advances
with
respect to such Mortgage Loan are, or would constitute, a Nonrecoverable
Advance.
Section
6.02 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof
by the
Company pursuant to a deed-in-lieu of foreclosure, the Subservicer shall
submit
to the Company a liquidation report in the format set forth in Exhibit
F
attached hereto (or in such other format mutually agreed to by the Subservicer
and Company) with respect to such Mortgaged Property and all supporting
documentation reasonably required by the Master Servicer. The Servicer
shall
also provide reports on the status of REO Property containing such information
as Company may reasonably require.
31
ARTICLE
VII
GENERAL
SERVICING PROCEDURES
Section
7.01 Assumption
Agreements.
The
Subservicer shall, to the extent it has knowledge of any conveyance or
prospective conveyance by any Mortgagor of a Mortgaged Property (whether
by
absolute conveyance or by contract of, sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan
under any
“due-on-sale” clause to the extent permitted by law; provided, however, that the
Subservicer shall not exercise any such rights if prohibited by law or
the terms
of the Mortgage Note from doing so or if the exercise of such rights
would
impair or threaten to impair any recovery under the related Primary Mortgage
Insurance Policy, if any. If the Subservicer reasonably believes it is
unable
under applicable law to enforce such “due-on-sale” clause, the Subservicer, with
the approval of the Company, will enter into an assumption agreement
with the
person to whom the Mortgaged Property has been conveyed or is proposed
to be
conveyed, pursuant to which such person becomes liable under the Mortgage
Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. If an assumption is allowed pursuant to this Section
6.01, the
Subservicer, with the prior consent of the primary mortgage insurer,
if any, is
authorized to enter into a substitution of liability agreement with the
person
to whom the Mortgaged Property has been conveyed or is proposed to be
conveyed
pursuant to which the original mortgagor is released from liability and
such
Person is substituted as mortgagor and becomes liable under the related
Mortgage
Note. Any such substitution of liability agreement shall be in lieu of
an
assumption agreement.
In
connection with any such assumption or substitution of liability, the
Subservicer shall follow the underwriting practices and procedures of
the ▇▇▇▇▇▇
▇▇▇ Guide. With respect to an assumption or substitution of liability,
the
Mortgage Interest Rate borne by the related Mortgage Note and the amount
of the
Monthly Payment may not be changed. The Subservicer shall notify the
Company
that any such substitution of liability or assumption agreement has been
completed by forwarding to the Company the original of any such substitution
of
liability or assumption agreement, which document shall be added to the
related
Mortgage Loan Documents and shall, for all purposes, be considered a
part of
such related mortgage file to the same extent as all other documents
and
instruments constituting a part thereof. All fees collected by the Subservicer
for entering into an assumption or substitution of liability agreement
shall
belong to the Subservicer.
Notwithstanding
the foregoing paragraphs of this section or any other provision of this
Agreement, the Subservicer shall not be deemed to be in default, breach
or any
other violation of its obligations hereunder by reason of any assumption
of a
Mortgage Loan by operation of law or any assumption which the Subservicer
may be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 6.01, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by
an
assumption or substitution of liability agreement.
32
Section
7.02 Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Subservicer will immediately
notify
the Custodian with a certification and request for release by a Servicing
Officer in the form of Exhibit I attached hereto, which certification
shall
include a statement to the effect that all amounts received in connection
with
such payment which are required to be deposited in the Protected Account
pursuant to Section 4.04 have been so deposited, and a request for delivery
to
the Subservicer of the Mortgage Loan Documents held by the Custodian.
Upon
receipt of such certification and request by the Custodian, the Company
shall
promptly release or cause the Custodian to promptly release the related
Mortgage
Loan Documents to the Subservicer and the Subservicer shall prepare and
deliver
for execution by the Company or at the Company’s option execute under the
authority of a power of attorney delivered to the Subservicer by the
Company any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Protected
Account.
In
the
event the Subservicer satisfies or releases a Mortgage without having
obtained
payment in full of the indebtedness secured by the Mortgage or should
it
otherwise prejudice any right the Company may have under the mortgage
instruments, the Subservicer, upon written demand, shall remit to the
Company
within two Business Days the shortfall required to make payment in full
on the
outstanding principal balance of the related Mortgage Loan by deposit
thereof in
the Protected Account. The Subservicer shall maintain the Fidelity Bond
and
errors and omissions insurance insuring the Subservicer against any loss
it may
sustain with respect to any Mortgage Loan not satisfied in accordance
with the
procedures set forth herein.
Section
7.03 Servicing
Compensation.
As
compensation for its services hereunder, the Subservicer shall be entitled
to
withdraw from the Protected Account or to retain from interest payments
on the
Mortgage Loans the amounts provided for as the Subservicer’s Servicing Fee.
Additional servicing compensation in the form of assumption fees, as
provided in
Section 6.01, late payment charges and other ancillary fees (excluding
Prepayment Charges) shall be retained by the Subservicer to the extent
not
required to be deposited in the Protected Account. The Subservicer shall
be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor
except
as specifically provided for.
Section
7.04 Report
on Compliance and Attestation.
(a) On
or
before March 15th
of each
calendar year, commencing in 2007, the Subservicer shall:
(i) deliver
to the Master Servicer, the Depositor and the Company a report (in form
and
substance reasonably satisfactory to the Master Servicer, the Depositor
and the
Company) regarding the Subservicer’s assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required
under Rules
13a-18 and 15d-18 of the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”) and Item 1122 of Regulation AB. Such report shall be addressed
to the Master Servicer, the Depositor and the Company and signed by an
authorized officer of the Subservicer, and shall address each of the
applicable
Servicing Criteria specified on a certification substantially in the
form of
Exhibit J hereto delivered to the Master Servicer, the Depositor and
the Company
concurrently with the execution of this Agreement;
33
(ii) deliver
to the Master Servicer, the Depositor and the Company a report of a registered
public accounting firm reasonably acceptable to the Master Servicer,
the
Depositor and the Company that attests to, and reports on, the assessment
of
compliance made by the Subservicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3)
and
2-02(g) of Regulation S-X under the Securities Act of 1933, as amended
(the
“Securities Act”) and the Exchange Act;
(iii) cause
each Reg AB Subservicer, and each Reg AB Subcontractor determined by
the
Subservicer pursuant to Section 9.04(c) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Master Servicer, the Depositor and the Company an assessment of compliance
and
accountants’ attestation as and when provided in paragraphs (a) and (b) of this
Section; and
(iv) deliver
to the Master Servicer, the Depositor, the Company and any other Person
that
will be responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”)) on behalf of
the trust fund with respect to the transaction relating to this Agreement
a
certification signed by the appropriate officer of the Subservicer in
the form
attached hereto as Exhibit L.
The
Subservicer acknowledges that the parties identified in clause (a)(iv)
above may
rely on the certification provided by the Subservicer pursuant to such
clause in
signing a Sarbanes Certification and filing such with the Commission.
None of
the Master Servicer, the Depositor or the Company will request delivery
of a
certification under clause (a)(iv) above unless a Depositor is required
under
the Exchange Act to file an annual report on Form 10-K with respect to
the trust
fund.
(b) Each
assessment of compliance provided by a Reg AB Subservicer pursuant to
Section
7.04(a)(i) shall address each of the Servicing Criteria specified on
a
certification substantially in the form of Exhibit J hereto delivered
to the
Master Servicer, the Depositor and the Company concurrently with the
execution
of this Agreement or, in the case of a Reg AB Subservicer subsequently
appointed
as such, on or prior to the date of such appointment. An assessment of
compliance provided by a Reg AB Subcontractor pursuant to Section 7.04(a)(iii)
need not address any elements of the Servicing Criteria other than those
specified by the Subservicer pursuant to Section 9.04.
34
Notwithstanding
anything to the contrary in this Agreement, the Subservicer shall be
under no
obligation to provide any information that either the Company or Depositor
deem
required under Regulation AB if (i) the Subservicer does not believe
that such
information is required under Regulation AB and (ii) the Subservicer
is not
providing such information for securitizations on its own Shelf Registration
on
Form S-3 (or any Shelf Registration on Form S-3 of any of its Affiliates
relating to the same asset type) unless either the Company or Depositor
pays all
reasonable incremental costs incurred by the Subservicer in connection
with the
preparation and delivery of such information. The Subservicer shall deliver
any
such information within 15 days of such written request, if such information
is
quantitative information set forth on, or which may be derived from,
information
in the Subservicer's databases, or otherwise within a commercially reasonable
time taking into account the time required to implement the necessary
systems
and procedures to produce such information.
(c) The
Subservicer shall provide to the Company, the Master Servicer and the
Depositor,
evidence of the authorization of the person signing any certification
or
statement, copies or other evidence of Fidelity Bond Insurance and Errors
and
Omission Insurance policy, financial information and reports, and such
other
information related to the Subservicer or such Subservicer’s performance
hereunder as may be reasonably requested by the Company, the Master Servicer
or
the Depositor.
Section
7.05 Subservicer
Compliance Statement.
On
or
before March 15th
of each
calendar year, commencing in 2007, the Subservicer shall deliver to the
Master
Servicer, the Depositor and the Company a statement of compliance addressed
to
the Master Servicer, the Depositor and the Company and signed by an authorized
Servicing Officer, to the effect that (i) a review of the Subservicer’s
activities during the immediately preceding calendar year (or applicable
portion
thereof) and of its performance under this Agreement during such period
has been
made under such Servicing Officer’s supervision, and (ii) to the best of such
Servicing Officer’s knowledge, based on such review, the Subservicer has
fulfilled all of its obligations under this Agreement in all material
respects
throughout such calendar year (or applicable portion thereof) or, if
there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and
the nature
and the status thereof.
Section
7.06 Company’s
Right to Examine Subservicer Records.
The
Company and the Master Servicer shall have the right to examine and audit,
at
its expense, upon reasonable notice to the Subservicer, during business
hours or
at such other times as might be reasonable under applicable circumstances,
any
and all of the books, records, documentation or other information of
the
Subservicer, or held by another for the Subservicer or on its behalf
or
otherwise, which relate to the servicing of the Mortgage Loans by
Subservicer.
The
Subservicer shall provide to the Company and the Master Servicer and
any
supervisory agents or examiners representing a state or federal governmental
agency having jurisdiction over the Company access to any documentation
regarding the Mortgage Loans in the possession of the Subservicer which
may be
required by any applicable regulations. Such access shall be afforded
upon
reasonable request, during normal business hours and at the offices of
the
Subservicer, and in accordance with the applicable federal or state government
regulations.
35
Company
shall reimburse the Subservicer for any actual, out-of-pocket expenses
reasonably incurred by the Subservicer as a result of its obligations
under this
Section 6.06. The Subservicer shall submit an invoice to the Company
detailing
such expenses.
Section
7.07 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Subservicer shall not take
any
action, cause the REMIC to take any action or fail to take (or fail to
cause to
be taken) any action that, under the REMIC Provisions, if taken or not
taken, as
the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contribution” to a REMIC set forth in Section 860G(d) of
the Code unless the Subservicer has received an Opinion of Counsel (at
the
expense of the party seeking to take such actions) to the effect that
the
contemplated action will not endanger such REMIC status or result in
the
imposition of any such tax.
Section
7.08 Non-solicitation.
The
Subservicer shall not conduct any solicitation specifically targeted
to the
Mortgagors for the purpose of inducing or encouraging the early prepayment
or
refinancing of the related Mortgage Loans. It is understood and agreed
that
promotions undertaken by the Subservicer or any agent or affiliate of
the
Subservicer which are directed to the general public at large, including
mass
mailings based on commercially acquired mailing lists, newspaper, internet,
radio and television advertisements, shall not constitute solicitation
under
this Section 6.08.
Section
7.09 Reporting
Requirements of the Commission and Indemnification.
The
Subservicer, the Company, the Depositor and the Master Servicer acknowledge
and
agree that the purpose of Sections 3.01(i), 5.02(b) and (c), 7.04, 7.05
and 9.04
of this Agreement is to facilitate compliance by the Company, the Depositor
and
the Master Servicer with the provisions of Regulation AB and related
rules and
regulations of the Commission. None of the Master Servicer, the Depositor
or the
Company shall exercise its right to request delivery of information or
other
performance under these provisions other than in good faith, or for purposes
other than compliance with the Securities Act, the Exchange Act and the
rules
and regulations of the Commission thereunder (or the provision in a private
offering of disclosure comparable to that required under the Securities
Act).
The Subservicer acknowledges that interpretations of the requirements
of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants
in the
asset-backed securities markets, advice of counsel, or otherwise, and
agrees to
comply with requests made by the Master Servicer, the Depositor or the
Company
in good faith for delivery of information under these provisions on the
basis of
evolving interpretations of Regulation AB. In connection
with the
transaction relating to this Agreement,
the
Subservicer shall cooperate fully with the Master Servicer, the Depositor
and
the Company to deliver to the Master Servicer, the Depositor and the
Company
(including any of their respective assignees or designees), any and all
statements, reports, certifications, records and any other information
necessary
in the good faith determination of the Master Servicer, the Depositor
or the
Company to permit the Master Servicer or the Company to comply with the
provisions of Regulation AB, together with such disclosures relating
to the
Subservicer, any Reg AB Subservicer and the Mortgage Loans, or the servicing
of
the Mortgage Loans, reasonably believed by the Master Servicer, the Depositor
or
the Company to be necessary in order to effect such compliance.
36
The
Master Servicer, the Depositor and the Company (including any of their
respective assignees or designees) shall cooperate with the Subservicer
by
providing timely notice of requests for information under these provisions
and
by reasonably limiting such requests to information required, in the
Master
Servicer’s, the Depositor’s or the Company’s reasonable judgment, to comply with
Regulation AB.
ARTICLE
VIII
REPORTS
TO BE PREPARED BY SERVICER
Section
8.01 Subservicer
Shall Provide Information as Reasonably Required.
The
Subservicer shall furnish to the Company upon reasonable request, during
the
term of this Agreement, such periodic, special or other reports or information,
whether or not provided for herein, as shall be reasonably necessary
with
respect to the purposes of this Agreement, including (1) copies of the
Subservicer’s annual financials, (2) the Subservicer’s authorized officer lists
and (3) copies of the Subservicer’s insurance policies. The Subservicer may
negotiate with the Company for a reasonable fee for providing such report
or
information, unless (i) the Subservicer is required to supply such report
or
information pursuant to any other section of this Agreement, or (ii)
the report
or information has been requested in connection with Internal Revenue
Service or
other regulatory agency requirements. All such reports or information
shall be
provided by and in accordance with all reasonable instructions and directions
given by the Company.
ARTICLE
IX
THE
SUBSERVICER
Section
9.01 Additional
Indemnification by the Subservicer; Third Party Claims.
(a) (i) Subject
to (f) below, any failure by the Subservicer, any Reg AB Subservicer
or any Reg
AB Subcontractor to
deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article 9.01, or any breach
by the
Subservicer
of a
representation or warranty set forth in Section 3.01(i) made as of a
date prior
to the Closing Date, to the extent that such breach is not cured by the
Closing
Date, shall, except as provided in clause (ii) of this paragraph, immediately
and automatically, without notice or grace period, constitute an Event
of
Default with respect to the Subservicer
under
this Agreement, and shall entitle the Company, in its sole discretion
to
terminate the rights and obligations of the Subservicer
as
subservicer under this Agreement without payment (notwithstanding anything
in
this Agreement) of any compensation to the Subservicer;
provided
that to
the extent that any provision of this Agreement expressly provides for
the
survival of certain rights or obligations following termination of the
Subservicer
as
subservicer, such provision shall be given effect.
37
(ii) Subject
to (f) below, any
failure by the Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor
to
deliver any information, report, certification or accountants’ letter when and
as required under Section 7.04 or 7.05, including (except as provided
below) any
failure by the Subservicer
to
identify pursuant to Section 9.04(c) any Reg AB 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 Subservicer
under
this Agreement, and shall entitle the Company, in its sole discretion
to
terminate the rights and obligations of the Subservicer
as
subservicer under this Agreement without payment (notwithstanding anything
in
this Agreement to the contrary) of any compensation to the Subservicer;
provided
that to
the extent that any provision of this Agreement expressly provides for
the
survival of certain rights or obligations following termination of the
Subservicer
as
subservicer, such provision shall be given effect.
The
Company shall not be entitled to terminate the rights and obligations
of the
Subservicer
pursuant
to this subparagraph (b)(ii) if a failure of the Subservicer
to
identify a Reg AB 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 Reg AB Subcontractor with respect to mortgage loans
other than
the Mortgage Loans.
(iii) The
Subservicer
shall
promptly reimburse the Company (or any designee of the Company) for all
reasonable expenses incurred by the Company (or such designee), as such
are
incurred, in connection with the termination of the Subservicer
as
subservicer and the transfer of servicing of the Mortgage Loans to a
successor
subservicer. The provisions of this paragraph shall not limit whatever
rights
the Company may have under other provisions of this Agreement or otherwise,
whether in equity or at law, such as an action for damages, specific
performance
or injunctive relief.
(b)
The
Subservicer agrees to indemnify the Company, the Depositor, the Master
Servicer,
their successors and assigns, and any agent of the Company (each a “Company
Indemnified Person”) and hold each such Indemnified Person harmless from and
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and
expenses
that such Company Indemnified Person may sustain in any way related to
the
failure of the Subservicer to perform its duties and service the Mortgage
Loans
in compliance with the terms of this Agreement and for breach of any
representation, warranty or covenant of the Subservicer contained herein.
The
Subservicer shall immediately notify the Company or other Company Indemnified
Person if a claim is made by a third party with respect to this Agreement
or the
Mortgage Loans, assume (with the prior written consent of the Company
and such
other Indemnified Person) the defense of any such claim and pay all expenses
in
connection therewith, including counsel fees, and promptly pay, discharge
and
satisfy any judgment or decree which may be entered against it or such
other
Company Indemnified Person in respect of such claim but failure to so
notify the
Company and such other Company Indemnified Person shall not limit its
obligations hereunder. The Subservicer agrees that it will not enter
into any
settlement of any such claim without the consent of the Company and such
other
Company Indemnified Person unless such settlement includes an unconditional
release of the Company and such other Company Indemnified Person from
all
liability that is the subject matter of such claim. The Subservicer shall
be
entitled to reimbursement of any such costs and expenses from funds in
the
Protected Account or from the Company, upon written notice, if funds
in the
Protected Account are insufficient for such purpose, unless such claim
relates
to a matter for which the Subservicer is required to indemnify the Company
Indemnified Person.
38
(c)
Failure to provide the Annual Statement of Compliance or Annual Certification
will be treated as a failure of the Subservicer to perform its duties
under the
Agreement and will be subject to the indemnification provisions of Section
9.01,
subject to the limitation expressed therein, of the Agreement. For any
indemnification from the Subservicer to any Master Servicer, the Subservicer
in
no event will be liable for punitive or consequential damages, regardless
of the
form of action, whether in contract, tort or otherwise.
(d)
The
Company shall indemnify the Subservicer, its affiliates, and their respective
officers, directors, employees, agents, successors and assigns (each
a
“Subservicer Indemnified Person”) and hold each of such Subservicer Indemnified
Persons harmless from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments,
and any
other costs, fees and expenses that such Subservicer Indemnified Person
may
sustain in any way related to the failure of the Company to perform its
duties
in compliance with the terms of this Agreement and for breach of any
representation, warranty or covenant of the Company contained herein.
The
Company shall immediately notify the Subservicer or other Subservicer
Indemnified Party if a claim is made by a third party with respect to
this
Agreement or the Mortgage Loans, assume (with the prior written consent
of the
Subservicer and such other Subservicer Indemnified Person and with counsel
reasonably satisfactory to the Subservicer) the defense of any such claim
and
pay all reasonable expenses in connection therewith, including counsel
fees, and
promptly pay, discharge and satisfy any judgment or decree which may
be entered
against Subservicer or such other Subservicer Indemnified Person in respect
of
such claim but failure to so notify the Subservicer and such other Subservicer
Indemnified Person shall not limit its obligations hereunder. The Company
agrees
that it will not enter into any settlement of any such claim without
the consent
of the Subservicer and such other Subservicer Indemnified Person unless
such
settlement includes an unconditional release of the Subservicer and such
other
Subservicer Indemnified Person from all liability that is the subject
matter of
such claim.
39
(e)
In
addition to the indemnification set forth in Section 9.01(d) hereof,
the Company
shall indemnify and hold Subservicer and each Subservicer Indemnified
Person
harmless from and against any and all claims, losses, damages, penalties,
fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses resulting from or related to:
(1) any
failure of the Company, any Prior Servicer or the Originator to have
complied
with all Applicable Requirements with respect to the origination, purchase,
sale, securitization or servicing of the Mortgage Loans;
(2) the
Subservicer’s compliance with written instructions of the Company;
(3) any
outstanding Servicing Advance as to which Subservicer is not reimbursed
in
accordance with this Agreement;
(4) the
continuation and/or perpetuation by Subservicer of the past practices
of the
Company or any Prior Servicer that fail to comply with Applicable
Requirements;
(5) any
failure of Subservicer to comply with Applicable Requirements or the
requirements of this Agreement as a result of there being any incomplete,
inaccurate or missing Mortgage Loan Documents, Mortgage Files or Servicing
Files
as of the applicable Effective Date;
(6) any
litigation, arbitration or other proceeding before any governmental,
administrative or arbitral court or tribunal, or any government investigation
or
administrative enforcement action commenced against Subservicer after
the
applicable Effective Date as a result of Subservicer’s acting as, or status as,
servicer of the Mortgage Loans hereunder, to the extent that such proceeding
does not arise out of or result from Subservicer’s breach of any provision of
this Agreement;
(7) errors
in
the adjustment, after the applicable Effective Date but prior to the
completion
of an ARM Loan audit paid for by Company with respect to such ARM Loan,
of the
interest rate or payments on an ARM Loan to the extent arising out of
an
incorrect adjustment of such interest rate or payments prior to the applicable
Effective Date;
(8) Company’s
or a prior Servicer’s failure to comply with Subservicer’s transfer instructions
attached hereto as Exhibit H, or
(9) any
act
or omission or other event or circumstance to the extent occurring or
arising
prior to the applicable Effective Date and related to the origination,
purchase,
sale, securitization or servicing of the Mortgage Loans, including, without
limitation, any data integrity issue (and any related costs of correcting
such
issues).
(f)
The
provisions of this Section 9.01 shall survive termination of this
Agreement.
40
Section
9.02 Merger
or Consolidation of the Subservicer.
The
Subservicer shall keep in full effect its existence, rights and franchises
as a
corporation under the laws of the state of its incorporation except as
permitted
herein, and will obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification
is or shall
be necessary to protect the validity and enforceability of this Agreement
or any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Subservicer may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which the
Subservicer shall be a party, or any Person succeeding to the business
of the
Subservicer whether or not related to loan servicing, shall be the successor
of
the Subservicer hereunder, without the execution or filing of any paper
or any
further act on the part of any of the parties hereto, anything herein
to the
contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution (i) having a GAAP net worth of not less
than
$25,000,000, (ii) the deposits of which are insured by the FDIC, or which
is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien 1-4 family mortgage loans, and (iii) which is a ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇
Mac approved seller/servicer in good standing. Furthermore, in the event
the
Subservicer transfers or otherwise disposes of all or substantially all
of its
assets to an affiliate of the Subservicer, such affiliate shall satisfy
the
condition above, and shall also be fully liable to the Company for all
of the
Subservicer's obligations and liabilities hereunder.
Section
9.03 Limitation
on Liability of the Subservicer and Others.
Neither
the Subservicer nor any of the directors, officers, employees or agents
of the
Subservicer shall be under any liability to the Company for any action
taken or
for refraining from the taking of any action in good faith pursuant to
this
Agreement, or for errors in judgment made in good faith; provided, however,
that
this provision shall not protect the Subservicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in compliance with any standard of care set forth in this
Agreement,
or any liability which would otherwise be imposed under this Agreement.
Notwithstanding Section 8.01(a), the Subservicer shall not be required
to
indemnify, or otherwise be liable to, the Company or those referenced
above for
any claims, losses, damages, penalties, fines, forfeitures, legal fees
and
related costs, judgments, and any other costs, fees and expenses which
the
Company is required to indemnify for pursuant to Sections 8.01(b) and
(c). The
Subservicer and any director, officer, employee or agent of the Subservicer
may
rely in good faith on any document of any kind prima facie properly executed
and
submitted by any Person respecting any matters arising hereunder. The
Subservicer shall not be under any obligation to appear in, prosecute
or defend
any legal action which is not incidental to its duties to service the
Mortgage
Loans in accordance with this Agreement and which in its opinion may
involve it
in any expenses or liability; provided, however, that the Subservicer
may, with
the consent of the Company, undertake any such action which it may deem
necessary or desirable with respect to this Agreement and the rights
and duties
of the parties hereto. In such event, the reasonable legal expenses and
costs of
such action and any liability resulting therefrom shall be expenses,
costs and
liabilities for which the Company will be liable, and the Subservicer
shall be
entitled to reimbursement of such amounts from the Protected Account.
If funds
in the Protected Account are insufficient for such purpose, upon written
notice
to the Company, Company shall reimburse the Subservicer for such expenses,
costs
and liabilities.
41
Section
9.04 Subservicing
Agreements and Successor Subservicer.
(a) The
Subservicer shall not hire or otherwise utilize the services of any Reg
AB
Subservicer to fulfill any of the obligations of the Subservicer as subservicer
under this Agreement unless the Subservicer complies with the provisions
of
paragraph (b) of this Section 9.04 and the proposed Reg AB Subservicer
(i) is an
institution which is an approved ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac Seller/Servicer
as
indicated in writing and (ii) represents and warrants that it is in compliance
with the laws of each state as necessary to enable it to perform its
obligations
under such subservicing agreement. The Subservicer shall not hire or
otherwise
utilize the services of any Reg AB Subcontractor, and shall not permit
any Reg
AB Subservicer to hire or otherwise utilize the services of any Reg AB
Subcontractor, to fulfill any of the obligations of the Subservicer as
subservicer under this Agreement unless the Subservicer complies with
the
provisions of paragraph (c) of this Section 9.04.
(b) It
shall
not be necessary for the Subservicer to seek the consent of the Master
Servicer
and the Company to the utilization of any Reg AB Subservicer. For purposes
of
this Agreement, the Subservicer shall be deemed to have received payments
on
Mortgage Loans immediately upon receipt by any Reg AB Subservicer of
such
payments. Each subservicing agreement shall provide that a successor
Subservicer
shall have the option to terminate such agreement without payment of
any fees if
the predecessor Subservicer is terminated or resigns. The Subservicer
shall
cause any Reg AB Subservicer used by the Subservicer (or by any Reg AB
Subservicer) to comply with the provisions of this Section 9.04 and with
Sections 3.01(i), 5.02(b), 7.04(a), 7.04(b), 7.05 and 9.01 and Exhibit
J of this
Agreement to the same extent as if such Reg AB Subservicer were the Subservicer.
The Subservicer shall be responsible for obtaining from each Reg AB Subservicer
and delivering to the Master Servicer and the Company any subservicer
compliance
statement required to be delivered by such Reg AB Subservicer under Section
7.05, any reports on assessment of compliance and attestation required
to be
delivered by such Reg AB Subservicer under Section 7.04 and any certification
required to be delivered under 7.04 to the Person that will be responsible
for
signing the Sarbanes Certification under Section 7.04 as and when required
to be
delivered hereunder.
(c) It
shall
not be necessary for the Subservicer to seek the consent of the Master
Servicer
and the Company to the utilization of any Reg AB Subcontractor. The Subservicer
shall promptly upon request provide the Master Servicer and the Company
a
written description (in form and substance satisfactory to the Master
Servicer
and the Company) of the role and function of each Reg AB Subcontractor
utilized
by the Subservicer or any Reg AB Subservicer, specifying (A) the identity
of
each such Reg AB Subcontractor, (B) which (if any) of such Reg AB Subcontractors
are Participating Entities, and (C) which elements of the servicing criteria
set
forth under Item 1122(d) of Regulation AB will be addressed in assessments
of
compliance provided by each Reg AB Subcontractor identified pursuant
to clause
(B) of this paragraph.
42
As
a
condition to the utilization of any Reg AB Subcontractor determined to
be a
Participating Entity, the Subservicer shall cause any such Reg AB Subcontractor
used by the Subservicer (or by any Reg AB Subservicer) for the benefit
of the
Master Servicer and the Company to comply with the provisions of Sections
3.01(i), 5.02(b), 7.04(a), 7.04(b), 7.05 and 9.01 and Exhibit J of this
Agreement to the same extent as if such Reg AB Subcontractor were the
Subservicer. The Subservicer shall be responsible for obtaining from
each Reg AB
Subcontractor and delivering to Master Servicer and the Company any assessment
of compliance and attestation required to be delivered by such Reg AB
Subcontractor under Sections 7.04 and 7.05, in each case as and when
required to
be delivered.
Section
9.05 Subservicer
Not to Resign.
The
Subservicer shall not assign this Agreement or resign from the obligations
and
duties hereby imposed on it except by mutual consent of the Subservicer
and the
Company or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured
by the
Subservicer. Any such determination permitting the resignation of the
Subservicer shall be evidenced by an Opinion of Counsel to such effect
delivered
to the Company which Opinion of Counsel shall be in form and substance
reasonably acceptable to the Company. No such resignation shall become
effective
until a successor shall have assumed the Subservicer’s responsibilities and
obligations hereunder in the manner provided in Section 11.01.
Section
9.06 No
Transfer of Servicing.
With
respect to the retention of the Subservicer to service the Mortgage Loans
hereunder, the Subservicer acknowledges that the Company has acted in
reliance
upon the Subservicer’s independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way
limiting
the generality of this section, the Subservicer shall not either assign
this
Agreement or the servicing hereunder or delegate its rights or duties
hereunder
or any portion thereof, without the prior written approval of the
Company.
ARTICLE
X
DEFAULT
Section
10.01 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the
Subservicer:
(i) any
failure by the Subservicer to remit to the Company any payment required
to be
made under the terms of this Agreement which continues unremedied for
a period
of three (3) Business Days after written notice thereof (it being understood
that this subparagraph shall not affect Subservicer’s obligation pursuant to
Section 5.01 to pay default interest on any remittance received by the
Company
after the Business Day on which such payment was due); or
43
(ii) subject
to Section 9.01, any failure by the Subservicer to duly perform, within
the
required time period, its obligations to provide any certifications required
pursuant to Sections 7.04 or 7.05 (including with respect to such certifications
required to be provided by any Reg AB Subservicer or Reg AB Subcontractor
pursuant to Section 9.04), except as provided below, which failure continues
unremedied for a period of ten (10) days from the date of delivery required
with
respect to such certification; or
(iii) subject
to Section 9.01, except with respect to those items listed in clause
(ii) above,
any failure by the Subservicer to duly perform, within the required time
period,
its obligations to provide any other information, data or materials required
to
be provided hereunder pursuant to Sections 3.01(i) and 9.04 (except as
provided
below), including any items required to be included in any Exchange Act
report;
or
(iv) any
failure by the Subservicer duly to observe or perform in any material
respect
any other of the covenants or agreements on the part of the Subservicer
set
forth in this Agreement (other than with respect to Sections 6.04, 6.05
and
6.09), the breach of which has a material adverse effect and which continue
unremedied for a period of sixty days (except that such number of days
shall be
fifteen in the case of a failure to pay any premium for any insurance
policy
required to be maintained under this Agreement and such failure shall
be deemed
to have a material adverse effect) after the date on which written notice
of
such failure, requiring the same to be remedied, shall have been given
to the
Subservicer by the Company; or
(v) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Subservicer and such decree or order shall
have
remained in force undischarged or unstayed for a period of sixty days;
or
(vi) the
Subservicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Subservicer
or of or relating to all or substantially all of its property; or
(vii) the
Subservicer shall admit in writing its inability to pay its debts generally
as
they become due, file a petition to take advantage of any applicable
insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations or cease its
normal
business operations for two Business Days; or
(viii) the
Subservicer ceases to meet the qualifications of a ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac
servicer; or
(ix) the
Subservicer attempts, without the consent of the Company, to assign this
Agreement or the servicing responsibilities hereunder or to delegate
its duties
hereunder or any portion thereof except as otherwise permitted herein;
44
(x) the
Subservicer ceases to be qualified to transact business in any jurisdiction
where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Subservicer’s ability to
perform its obligations hereunder;
(xi) failure
by the Subservicer to duly perform, within the required time period,
its
obligations under Section 6.04, Section 6.05 or Section 6.09 of this
Agreement
which failure continues unremedied for a period of fifteen (15) days
after the
date on which written notice of such failure, requiring the same to be
remedied,
shall have been given to the Subservicer by any party to this Agreement
or by
any master servicer responsible for master servicing the Mortgage Loans
pursuant
to a securitization of such Mortgage Loans;
(xii) the
Subservicer ceases to be licensed to service first lien residential mortgage
loans in any jurisdiction in which a Mortgaged Property is located and
such
licensing is required, but only to the extent it materially and adversely
affects the Subservicer’s ability to perform its obligations hereunder;
or
(xiii) the
Subservicer fails to meet the eligibility criteria set forth in the second
paragraph of Section 8.02.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, the Company, by notice in writing to the Subservicer (except
in the
case of an Event of Default under clauses (v), (vi) or (vii) above, in
which
case, automatically and without notice) may, in addition to whatever
rights the
Company may have under Section 8.01 and at law or equity to damages,
including
injunctive relief and specific performance, terminate all the rights
and
obligations of the Subservicer under this Agreement and in and to the
Mortgage
Loans and the proceeds thereof without compensating the Subservicer for
the
same; provided that Subservicer shall be entitled to all outstanding
servicing
compensation and unreimbursed advances due pursuant to this Agreement.
The
rights and obligations of the Subservicer pursuant to subparagraphs (ii)
and
(iii) above shall not be terminated if a failure of the Subservicer to
identify
a Reg AB Subcontractor as a Participating Entity was attributable solely
to the
role or functions of such Reg AB Subcontractor with respect to mortgage
loans
other than the Mortgage Loans.
From
and
after the receipt by the Subservicer of such written notice (or, in the
case of
an Event of Default under clauses (iii), (iv) or (v) above, in which
case,
automatically and without notice), all authority and power of the Subservicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
11.01. Upon written request from the Company, the Subservicer shall prepare,
execute and deliver, any and all documents and other instruments, place
in such
successor’s possession all Servicing Files, and do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise, at the Subservicer’s
sole expense. The Subservicer agrees to reasonably cooperate with the
Company
and such successor in effecting the termination of the Subservicer’s
responsibilities and rights hereunder, including, without limitation,
the
transfer to such successor for administration by it of all cash amounts
which
shall at the time be credited by the Subservicer to the Protected Account
or
Escrow Account or thereafter received with respect to the Mortgage
Loans.
45
If
an
Event of Default occurs, the Subservicer shall provide written notice
of such
Event of Default to the Master Servicer.
Section
10.02 Waiver
of Defaults.
The
Company may waive, only by written notice, any default by the Subservicer
in the
performance of its obligations hereunder and its consequences. Upon any
such
waiver of a past default, such default shall cease to exist, and any
Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
XI
TERMINATION
Section
11.01 Termination.
The
respective obligations and responsibilities of the Subservicer shall
terminate
upon the earliest to occur of the following: (i) the later of the final
payment
or other liquidation (or any advance with respect thereto) of the last
Mortgage
Loan or the disposition of any REO Property and the remittance of all
funds due
hereunder; (ii) by 30 days’ written mutual consent of the Subservicer and
the Company or as provided in Section 10.02; and (iii) termination by
the
Company pursuant to Section 9.01. Simultaneously with any such termination
and
the transfer of servicing hereunder, the Subservicer shall be entitled
to be
reimbursed for any outstanding servicing compensation and Servicing Advances
and
Monthly Advances (net of any amounts owed by the Subservicer to the Company
hereunder). In no event shall the Subservicer be entitled to any termination
fee
or other compensation with respect to any termination of this Agreement
for
cause or the Subservicer’s rights hereunder, in whole or in part.
Section
11.02 Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-Through
Transfer.
The
Company and the Subservicer agree that with respect to some or all of
the
Mortgage Loans, the Company, at its sole option, may effect Pass-Through
Transfers, retaining the Subservicer as the servicer thereof or subservicer
if a
master servicer is employed, or as applicable the “servicer”. The Company and
the Subservicer acknowledge and agree that, subsequent to the initial
securitization of any Mortgage Loans contemporaneous with the transfer
to
Subservicer of such Mortgage Loans under this Agreement, the Subservicer
is not
obligated hereunder to act as servicer or subservicer in any Reconstitution.
At
the election of the Company, from and after the Reconstitution Date,
the
Mortgage Loans transferred shall, insofar as the Subservicer and the
Company
have agreed that the Subservicer shall act as servicer or subservicer
in the
Reconstitution, remain covered by this Agreement or shall be subject
to a
pooling and servicing agreement or a subservicing agreement containing
customary
secondary market servicing provisions with respect to servicing
responsibilities, investor reporting, segregation and deposit of principal
and
interest payments, custody of Mortgage Loans, and other provisions that
conform
to secondary market standards for mortgage-backed securities backed by
mortgage
loans similar to the Mortgage Loans. In connection with any Reconstitution
in
which the Company and the Subservicer have agreed that the Subservicer
shall act
as the servicer or subservicer in the Reconstitution, the Company shall
deliver
any agreement (“Reconstitution Agreement”) or other document related to the
Pass-Through Transfer to the Subservicer at least ten (10) Business Days
prior
to such transfer; the Servicer’s refusal to cooperate with the Company based on
late delivery of such documents shall result in no liability to the
Subservicer.
46
The
Subservicer shall reasonably cooperate with the Company in connection
with each
Pass-Through Transfer in accordance with this Section 10.02; provided,
however,
that under no circumstances and in no event shall such cooperation include
any
act of the Subservicer or any event affecting the Subservicer which would
materially increase the Subservicer’s liabilities, obligations or costs beyond
those liabilities, obligations and costs contained in this Agreement.
In
connection therewith the Subservicer shall:
(a) make
all
representations and warranties with respect to the Subservicer itself
as of the
Reconstitution Date of the related Pass-Through Transfer that conform
in all
material respects to the representations and warranties in this
Agreement;
(b) negotiate
in good faith and execute any Reconstitution Agreement required by the
shelf
registrant to effectuate the foregoing provided that (i) such Reconstitution
Agreement contains servicing provisions substantially similar to those
herein or
are otherwise acceptable to the Subservicer in its sole discretion and
(ii) the
Subservicer’s refusal to execute any Reconstitution Agreement or related
documents may be based on any provision which materially (A) increases
the
liability or obligations of the Subservicer and/or (B) deprives the Subservicer
of the economic benefit intended to be conferred by this Agreement;
(c) provide
as applicable:
(i) any
and
all information and appropriate verification of information which may
be
reasonably available to the Subservicer, including the Subservicer's
applicable
foreclosure, delinquency experience and the Subservicer's underwriting
standards, whether through letters of its auditors and counsel or otherwise,
as
the Company shall reasonably request;
(ii) such
additional opinions of counsel, letters from auditors, and certificates
of
public officials or officers of the Subservicer as are reasonably believed
necessary by the Trustee, any Rating Agency, or the Company, as the case
may be,
in connection with such Pass-Through Transfers. The Company shall pay
all third
party costs associated with the preparation of such information. Under
this
Agreement, the Subservicer shall retain a servicing fee at a rate per
annum
equal to no less than the rate specified on the Mortgage Loan Schedule
for such
Mortgage Loan; and
47
(d) indemnify
the Company for any material misstatements contained in the information
provided
pursuant to (c) above.
The
Company hereby agrees to reimburse the Subservicer for reasonable expenses
incurred by the Subservicer that relate to reviewing and commenting on
the
Reconstitution Agreement for such Pass-Through Transfer. All Mortgage
Loans not
sold or transferred pursuant to a Pass-Through Transfer shall remain
subject to
this Agreement and shall continue to be serviced in accordance with the
terms of
this Agreement and with respect thereto this Agreement shall remain in
full
force and effect.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Successor
to the Subservicer.
Upon
termination of the Subservicer’s responsibilities and duties under this
Agreement pursuant to Sections 8.04, 9.01, or 10.01(iv) or (v), the Company
shall appoint a successor having the characteristics set forth in Section
8.02
and which shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Subservicer under this Agreement prior
to the
termination of the Subservicer’s responsibilities, duties and liabilities under
this Agreement. Each Rating Agency for a related securitization shall
be given
prior written notice of the identity of the proposed successor and each
Rating
Agency’s rating of the related securities in effect immediately prior to such
appointment will not be downgraded, qualified or withdrawn as a result
of such
appointment, as evidenced by a letter to such effect delivered to the
Master
Servicer and the Trustee. In connection with such appointment and assumption,
the Company may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as the Company and such successor shall
agree.
In the event that the Subservicer’s duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Subservicer shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such termination
until
the effective date thereof with the same degree of diligence and prudence
which
it is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition
of
its successor; provided, however, that a successor servicer shall be
in place
within 210 days of the date the Subservicer acquires knowledge of such
termination. Except as provided for in the preceding sentence, the resignation
or removal of the Subservicer pursuant to the aforementioned sections
shall not
become effective until a successor shall be appointed pursuant to this
section
and shall in no event relieve the Subservicer of the representations
and
warranties made pursuant to Article III and the remedies available to
the
Company under Section 8.01, it being understood and agreed that the provisions
of such Article III and Section 8.01 shall be applicable to the Subservicer
notwithstanding any such resignation or termination of the Subservicer,
or the
termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and
deliver to
the Subservicer and to the Company an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights,
powers,
duties, responsibilities, obligations and liabilities of the Subservicer,
with
like effect as if originally named as a party to this Agreement. Any
termination
or resignation of the Subservicer or termination of this Agreement pursuant
to
Section 8.04, 9.01 or 10.01 shall not affect any claims that the Company
may
have against the Subservicer arising prior to any such termination or
resignation.
48
The
Subservicer shall promptly deliver to the successor the funds in the
Protected
Account and the Escrow Account and the Servicing Files and related documents
and
statements held by it hereunder and the Subservicer shall account for
all funds.
The Subservicer shall execute and deliver such instruments and do such
other
things as may reasonably be required to more fully and definitely vest
and
confirm in the successor all such rights, powers, duties, responsibilities,
obligations and liabilities of the Subservicer.
Upon
a
successor’s acceptance of appointment as such, the Subservicer shall notify the
Company of such appointment.
Section
12.02 Amendment.
This
Agreement may be amended from time to time by the Subservicer and the
Company
with the prior written consent of the Master Servicer and the Depositor;
provided
that the
party requesting such amendment shall, at its own expense, provide the
Master
Servicer and the Depositor with an Opinion of Counsel that such amendment
will
not materially adversely affect the interest of the certificateholders
in the
Mortgage Loans. Any such amendment shall be deemed not to adversely affect
in
any material respect any the interest of the certificateholders in the
Mortgage
Loans if the Trustee receives written confirmation from each Rating Agency
that
such amendment will not cause such Rating Agency to reduce, qualify or
withdraw
the then current rating assigned to the certificates (and any Opinion
of Counsel
received by the the Master Servicer and the Depositor in connection with
any
such amendment may rely expressly on such confirmation as the basis
therefor);
provided, however,
this
Agreement may be amended by the Subservicer and the Company from time
to time
without the delivery of an Opinion of Counsel described above to the
extent
necessary, in the judgment of the Company and its counsel, to comply
with any
rules promulgated by the Commission and any interpretations thereof by
the staff
of the Commission.
Section
12.03 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS. THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
12.04 Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, and return
receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
49
(i) if
to the
Subservicer with respect to servicing issues:
GMAC
Mortgage Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Executive Vice-President National Loan Administration
With
a
copy to:
GMAC
Mortgage Corporation
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Manager
Telecopier
No.: ▇▇▇-▇▇▇-▇▇▇▇
With
a
copy to:
GMAC
Mortgage Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
General Counsel
Telecopier
No.: ▇▇▇-▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Company in writing
by the
Subservicer;
(ii) to
the
Company:
MortgageIT,
Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Credit Officer
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the other party by like
notice.
Any such demand, notice, or communication hereunder shall be deemed to
have been
received on the date delivered to or received at the premises of the
address (as
evidenced, in the case of registered or certified mail, by the date noted
on the
return receipt).
Section
12.05 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this
Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement.
50
Section
12.06 Exhibits
and Schedules.
The
exhibits, schedules and other addenda and supplements to this Agreement
are
hereby incorporated and made a part hereof and are an integral part of
this
Agreement.
Section
12.07 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or
unless the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this
Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them
in
accordance with generally accepted accounting principles;
(iii) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a
reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(vi) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
12.08 Reproduction
of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed,
(ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished,
may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is
in
existence and whether or not such reproduction was made by a party in
the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
12.09 Confidentiality
of Information.
51
The
Subservicer and the Company each agrees that any information and documents
that
are furnished for the purposes of performing under this Agreement or
that are
produced or are otherwise furnished to or come to the attention of either
party
are proprietary and shall be used only for the purposes of this Agreement.
This
information includes the terms of this Agreement, technical specifications
and
operating manuals, services and information concerning current, future,
or
proposed products and services and combinations of products and services;
product and services descriptions; financial information; information
related to
mergers or acquisitions; passwords and security procedures; computer
programs,
software, and software documentation; customer and/or prospective client
lists,
and all other information relating in any way to the customer and/or
prospective
client; printouts; records; policies, practices and procedures; and any
or all
other information, data or materials relating to the business, trade
secrets and
technology of either party, its customers, clients, employees, business
affairs,
affiliates, subsidiaries and the affiliates of its parent organization
(all of
the foregoing collectively referred to as “Confidential Information”). Neither
party shall, without the prior consent of the other party, advertise
or announce
that it is providing or has provided services to the other party, or
otherwise
use any trade name, trademark, service ▇▇▇▇ or other information which
identifies the other party or its affiliates in a party’s marketing and
publicity activities.
Each
party shall maintain the Confidential Information of the other in confidence
using the same care and discretion to avoid disclosure of Confidential
Information as it uses to protect its own confidential information that
it does
not want disclosed, but in no event less than a reasonable standard of
care;
provided, however, the Trustee and the Master Servicer may disclose on
a
confidential basis any Confidential Information to its agents, auditors
and
attorneys in connection with its performance of its responsibilities
hereunder
and under the Pooling and Servicing Agreement. Each party further agrees
to (a)
restrict disclosure of Confidential Information of the disclosing party
solely
to persons who need to know the Confidential Information to perform under
this
Agreement, (b) not to disclose any Confidential Information to any third
party
or copy Confidential Information without written approval of the disclosing
party, and (c) inform those third parties and other persons who receive
Confidential Information of its confidential nature and obtain their
agreement
to abide by the obligations set forth herein. Each party shall implement
all
policies and procedures to ensure compliance with all applicable provisions
of
the Privacy Requirements.
The
obligations imposed under this Agreement shall not apply to Confidential
Information that is (a) made public by the party whose Confidential Information
is disclosed, party, (b) generally available to the public other than
by a
breach of this Agreement by the receiving party, its employees or agents,
(c)
necessary to be disclosed or used by either party in litigation with
the other
party or (d) rightfully received from a third person having the legal
right to
disclose the Confidential Information free of any obligation of confidence,
nor
shall this Section 11.09 be deemed to prohibit any disclosure by a party
that is
necessary or appropriate in such party’s work with legal counsel, accountants,
auditors or as required by applicable law or regulation. In the event
that the
receiving party, or any of such party’s agents or employees, becomes legally
compelled (by deposition, interrogatory, request for documents, subpoena,
civil
or criminal investigative demand or similar process) to disclose any
Confidential Information of the disclosing party, such receiving party
shall
provide prompt prior notice to the disclosing party so that it may seek
a
protective order or other appropriate remedy. In the event that such
protective
order or other remedy is not obtained, or that the disclosing party waives
compliance with the provisions of this Section 11.09, the receiving party
will
furnish only that portion of the Confidential Information which in the
judgment
of its counsel is legally required and will exercise reasonable efforts
to
obtain assurances that confidential treatment will be accorded the Confidential
Information.
52
Each
party acknowledges and agrees that any breach or threatened breach of
any of the
provisions of this Section 12.09 by the other party will result in immediate
and
irreparable harm and that any remedies at law in such event will be inadequate.
The parties agree that such breaches, whether threatened or actual, will
give
the disclosing party the right to obtain injunctive relief to restrain
such
disclosure or use. This right shall, however, be in addition to and not
in lieu
of any other remedies at law or in equity.
Upon
termination of the Agreement, all copies of the Confidential Information
will
either be destroyed or returned to the disclosing party immediately upon
such
party’s request. Each party agrees that it will not retain any copy, summary
or
extract of the Confidential Information or any related work papers on
any
storage medium whatsoever. Notwithstanding anything to the contrary contained
herein, neither party shall in any event have any obligation hereunder
to
destroy Mortgage Loan Documents related thereto.
The
Subservicer and the Company each acknowledges that the provisions of
the federal
securities laws restrict any person who is in the possession of material,
non-public information regarding any company from purchasing or selling
securities of such company and from communicating such information to
any other
person under circumstances in which it is reasonably foreseeable that
such
person is likely to purchase or sell such securities. The Subservicer
and the
Company each agrees to abide by such laws as they relate to the other’s
securities and Confidential Information.
Section
12.10 Assignment
by the Company.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. The Company shall have the right, without the
consent of
the Subservicer but subject to the limits set forth in this Agreement
hereof, to
assign, in whole or in part, its interest under this Agreement with respect
to
some or all of the Mortgage Loans, and designate any person to exercise
any
rights of the Company hereunder and the assignee or designee shall accede
to the
rights and obligations hereunder of the Company with respect to such
Mortgage
Loans provided that (a) the Company and any such assignee or designee
execute an
assignment and assumption agreement reasonably acceptable to the Subservicer,
(b) such Person has a tangible net worth of $20 million or such Person
is
otherwise acceptable to the Subservicer, in its sole and absolute discretion,
(c) there shall not be more than three (3) owners of the Mortgage Loans
exclusive of the Mortgage Loans included in a Pass-Through Transfer,
and (d) the
Company provides the Subservicer with written notice of the transfer
thirty (30)
days prior to the effective date of such transfer. All references to
the Company
in this Agreement shall be deemed to include its assignees or
designees.
53
Section
12.11 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Subservicer
shall be rendered as an independent contractor and not as agent for
Company.
Section
12.12 Counterparts;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.05, this Agreement shall
inure to
the benefit of and be binding upon the Subservicer and the Company and
their
respective successors and assigns.
Section
12.13 Entire
Agreement.
Each
of
the Subservicer and the Company acknowledges that no representations,
agreements
or promises were made to it by the other party or any of its employees
other
than those representations, agreements or promises specifically contained
herein. This Agreement sets forth the entire understanding between the
parties
hereto with respect to the matters set forth herein, and shall be binding
upon
all successors of both parties.
Section
12.14 Further
Agreements.
The
Subservicer and the Company each agrees to execute and deliver to the
other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purpose of this
Agreement.
Section
12.15 Third
Party Beneficiary.
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 Master Servicer and the Depositor receive the benefit
of the
provisions of this Agreement as intended third party beneficiaries of
this
Agreement to the extent of such provisions. The Subservicer shall have
the same
obligations to the Master Servicer and the Depositor as if they were
parties to
this Agreement, and the Master Servicer and the Depositor shall have
the same
rights and remedies to enforce the provisions of this Agreement as if
they were
parties to this Agreement. The Subservicer shall only take 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 Master Servicer and the
Depositor
hereunder (other than the right to indemnification) shall terminate upon
the
termination of the trust fund.
54
IN
WITNESS WHEREOF, the Subservicer and the Company have caused their names
to be
signed hereto by their respective officers thereunto duly authorized
as of the
date and year first above written.
MORTGAGEIT,
INC.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
General Counsel and Secretary
GMAC
MORTGAGE CORPORATION
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
55
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
Available
Upon Request
A-1
EXHIBIT
B
FORMS
OF
PROTECTED ACCOUNT CERTIFICATIONS
PROTECTED
ACCOUNT CERTIFICATION
____________________,
20 _______
GMAC
Mortgage Corporation hereby certifies that it has established the account
described below as a Protected Account pursuant to Section 4.04 of the
Subservicing Agreement, dated as of ______________________, 20
________,.
|
Title
of Account:
|
GMAC
Mortgage Corporation Protected Account in trust for [Company][Name
of
Trust] - P & I
|
|
Address
of office or branch of the Subservicer at which Account is
maintained:
|
|
| GMAC MORTGAGE CORPORATION | |
|
GMAC
MORTGAGE CORPORATION
Subservicer
|
|
|
By:
_________________________________
Name:
_______________________________
Title: ________________________________
|
B-1
EXHIBIT
C
FORMS
OF
ESCROW ACCOUNT CERTIFICATIONS
ESCROW
ACCOUNT CERTIFICATION
____________________,
20 _______
GMAC
Mortgage Corporation hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 4.06 of the
Subservicing Agreement, dated as of ______________________, 20
________,.
|
Title
of Account:
|
GMAC
Mortgage Corporation Escrow Account in trust for [Company][Name
of Trust]-
T & I
|
|
Address
of office or branch of the Subservicer at which Account is
maintained:
|
|
| GMAC MORTGAGE CORPORATION | |
|
GMAC
MORTGAGE CORPORATION
Subservicer
|
|
|
By:
_________________________________
Name:
_______________________________
Title: ________________________________
|
C-1
EXHIBIT
D
LOAN
LEVEL FORMAT FOR TAPE INPUT,
SUBSERVICER
PERIOD REPORTING
Exhibit
1: Standard File Layout - Scheduled/Scheduled
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LOAN_NBR
|
Loan
Number assigned by investor
|
Text
up to 10 digits
|
|
|
SERVICER
LOAN_NBR
|
Subservicer
Loan Number
|
Text
up to 10 digits
|
|
|
BORROWER_NAME
|
Mortgagor
name assigned to Note
|
Max
length of 30
|
|
|
SCHED_PMT_AMT
|
P&I
constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NOTE_INT_RATE
|
Gross
Interest Rate
|
4
|
Max
length of 6
|
|
NET_RATE
|
Gross
Interest Rate less the Service Fee Rate
|
4
|
Max
length of 6
|
|
SERV_FEE_RATE
|
Service
Fee Rate
|
4
|
Max
length of 6
|
|
NEW_PAY_AMT
|
ARM
loan's forecasted P&I constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEW_LOAN_RATE
|
ARM
loan's forecasted Gross Interest Rate
|
4
|
Max
length of 6
|
|
ARM_INDEX_RATE
|
ARM
loan's index Rate used
|
4
|
Max
length of 6
|
|
ACTL_BEG_BAL
|
Beginning
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
ACTL_END_BAL
|
Ending
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEXT_DUE_DATE
|
Borrower's
next due date
|
MM/DD/YYYY
|
|
|
CURT_AMT_1
|
Curtailment
Amount
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_1
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT_1
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_2
|
Curtailment
Amount 2
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_2
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT2
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_3
|
Curtailment
Amount 3
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_3
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_AMT3
|
Curtailment
Interest, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_BEG_BAL
|
Beginning
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_END_BAL
|
Ending
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_PRIN_AMT
|
Scheduled
Principal portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_NET_INT
|
Scheduled
Net Interest (less Service Fee) portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIQ_AMT
|
Liquidation
Principal Amt to bring balance to zero
|
2
|
No
commas(,) or dollar signs ($)
|
|
PIF_DATE
|
Liquidation
Date
|
MM/DD/YYYY
|
|
|
ACTION_CODE
|
Either
60 for liquidation or 65 for Repurchase
|
Max
length of 2
|
|
|
PRIN_ADJ_AMT
|
Principal
Adjustments made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
INT_ADJ_AMT
|
Interest
Adjustment made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
PREPAYMENT
PENALTY AMT
|
Prepayment
penalty amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SOILDER_SAILOR
ADJ AMT
|
Soldier
and Sailor Adjustment amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
NON
ADV LOAN AMT
|
Non
Recoverable Loan Amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
D-1
EXHIBIT
E
REPORTING
DATA FOR DEFAULTED LOANS
Data
must
be submitted to ▇▇▇▇▇ Fargo Bank in an Excel spreadsheet format with
fixed field
names and data type. The Excel spreadsheet should be used as a template
consistently every month when submitting data.
Exhibit: Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SUBSERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Subservicer. This may
be different
than the LOAN_NBR
|
||
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
||
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
||
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
||
|
PROP_STATE
|
The
state where the property located.
|
||
|
PROP_ZIP
|
Zip
code where the property is located.
|
||
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer
at the end of
processing cycle, as reported by Subservicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
||
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
||
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
||
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Subservicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from
the
borrower.
|
MM/DD/YYYY
|
E-1
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the
Subservicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
||
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
||
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price
opinion or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed
pursuant to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
||
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
E-2
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
·
|
ASUM-
|
Approved
Assumption
|
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
·
|
CO-
|
Charge
Off
|
|
·
|
DIL-
|
Deed-in-Lieu
|
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
|
·
|
MOD-
|
Loan
Modification
|
|
·
|
PRE-
|
Pre-Sale
|
|
·
|
SS-
|
Short
Sale
|
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Subservicer must supply ▇▇▇▇▇
Fargo
Bank with a description of each of the Loss Mitigation Types prior to
sending
the file.
The
Occupant
Code
field
should show the current status of the property code as follows:
|
·
|
Mortgagor
|
|
|
·
|
Tenant
|
|
|
·
|
Unknown
|
|
|
·
|
Vacant
|
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
|
·
|
Damaged
|
|
|
·
|
Excellent
|
|
|
·
|
Fair
|
|
|
·
|
Gone
|
|
|
·
|
Good
|
|
|
·
|
Poor
|
|
|
·
|
Special
Hazard
|
|
|
·
|
Unknown
|
|
E-3
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
E-4
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
E-6
EXHIBIT
F
CALCULATION
OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
The
numbers on the form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing
fee that would
have been earned if all delinquent payments had been made
as agreed. For
documentation, an Amortization Schedule from date of default
through
liquidation breaking out the net interest and servicing fees
advanced is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage
Loan as calculated on a monthly basis. For documentation,
an Amortization
Schedule from date of default through liquidation breaking
out the net
interest and servicing fees advanced is required.
|
|
4-12.
|
Complete
as applicable. All line entries must be supported by copies
of appropriate
statements, vouchers, receipts, bills, canceled checks, etc.,
to document
the expense. Entries not properly documented will not be
reimbursed to the
Subservicer.
|
|
13.
|
The
total of lines 1 through 12.
|
|
Credits:
|
|
|
14-21.
|
Complete
as applicable. All line entries must be supported by copies
of the
appropriate claims forms, EOBs, HUD-1 and/or other proceeds
verification,
statements, payment checks, etc. to document the credit.
If the Mortgage
Loan is subject to a Bankruptcy Deficiency, the difference
between the
Unpaid Principal Balance of the Note prior to the Bankruptcy
Deficiency
and the Unpaid Principal Balance as reduced by the Bankruptcy
Deficiency
should be input on line 20.
|
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16)
for Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
| 23. |
The
total derived from subtracting line 22 from 13. If the amount
represents a
realized gain, show the amount in parenthesis (
).
|
F-1
EXHIBIT
3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
▇▇▇▇▇
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________
Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Subservicer
Loan No.
|
Subservicer
Name
|
Subservicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No.
___________________________________________________
Borrower's
Name:
____________________________________________________________________
Property
Address:
___________________________________________________________________
Liquidation
and Acquisition Expenses:
|
(1) Actual
Unpaid Principal Balance of Mortgage Loan
|
$
|
(1)
|
||
|
(2) Interest
accrued at Net Rate
|
(2)
|
|||
|
(3) Accrued
Servicing Fees
|
(3)
|
|||
|
(4) Attorney's
Fees
|
(4)
|
|||
|
(5) Taxes
|
(5)
|
|||
|
(6) Property
Maintenance
|
(6)
|
|||
|
(7) MI/Hazard
Insurance Premiums
|
(7)
|
|||
|
(8) Utility
Expenses
|
(8)
|
|||
|
(9) Appraisal/BPO
|
(9)
|
|||
|
(10) Property
Inspections
|
(10)
|
|||
|
(11) FC
Costs/Other Legal Expenses
|
(11)
|
|||
|
(12) Other
(itemize)
|
$
|
(12)
|
||
|
HOA/Condo
Fees ____________________
|
||||
|
Cash
for Keys _______________________
|
||||
|
___________________________________
|
||||
|
___________________________________
|
||||
|
Total
Expenses
|
$
|
(13)
|
||
Credits:
|
(14) Escrow
Balance
|
(14)
|
|||
|
(15) HIP
Refund
|
(15)
|
|||
|
(16) Rental
Receipts
|
(16)
|
|||
|
(17) Hazard
Loss Proceeds
|
(17)
|
|||
|
(18) Primary
Mortgage Insurance Proceeds
|
(18)
|
|||
|
(19) Pool
Insurance Proceeds
|
(19)
|
|||
|
(20) Proceeds
from Sale of Acquired Property
|
(20)
|
|||
|
(21) Other
(itemize)
|
(21)
|
|||
|
Total
Credits
|
$
|
(22)
|
||
|
Total
Realized Loss (or Amount of Gain)
|
$
|
(23)
|
||
3A-1
EXHIBIT
G
ELIGIBILITY
CRITERIA
|
Loan
Types:
|
Conventional
and government
|
|
Interest
rate types:
|
Fixed
and adjustable rate
|
|
Lien
Position types:
|
First
lien
|
|
Collateral
types:
|
1-4
family, residential properties
|
|
Credit
types:
|
Prime
and sub-prime
|
|
Age
limitations:
|
N/A
|
|
Geographic
limitations:
|
N/A
|
|
Disposition:
|
Loans
securitized as of the date of transfer and for which Subservicer
is the
sole servicer of all loans in the
security.
|
G-1
EXHIBIT
H
SERVICING
TRANSFER INSTRUCTIONS
TRANSFER
INSTRUCTIONS
TABLE
OF
CONTENTS
|
I
MANUAL TRANSFERS
|
H-3
|
|
II
GENERAL REQUIREMENTS
|
H-6
|
|
DEFINITIONS
|
H-6
|
|
TRANSFER
OF RECORDS
|
H-6
|
|
A)
ASSIGNMENT OF GMAC MORTGAGE LOAN NUMBERS
|
H-6
|
|
B)
SUSPENSE/CORPORATE BALANCES
|
H-6
|
|
C)
INTEREST ON ESCROW REQUIREMENTS
|
H-6
|
|
D)
YEAR-END REPORTING
|
H-7
|
|
E)
BUYDOWN REQUIREMENTS
|
H-7
|
|
F)
MULTIPLE CO-BORROWERS
|
H-7
|
|
G)
CLOSING ESCROW BALANCES
|
H-8
|
|
H)
SECOND MORTGAGES
|
H-8
|
|
I)
GRADUATED PAYMENTS
|
H-8
|
|
J)
ARM OR BALLOON LOANS
|
H-8
|
|
K)
PROGRAM DELIVERIES
|
H-8
|
|
L)
RETENTION OF SUPPORTING DOCUMENTATION
|
H-9
|
|
M)
LIEN RELEASE
|
H-9
|
|
III
MISCELLANEOUS
|
H-10
|
|
A)
PAYMENTS RECEIVED AFTER TRANSFER DATE
|
H-10
|
|
B)
CORRESPONDENCE RECEIVED AFTER TRANSFER DATE
|
H-10
|
|
C)
RETURN MAIL
|
H-10
|
|
IV
BORROWER NOTIFICATION
|
H-11
|
|
V
SERVICING FILES
|
H-12
|
|
VI
MERS
|
H-13
|
|
VII
INVESTOR INFORMATION
|
H-14
|
|
VIII
TAX REQUIREMENTS
|
H-15
|
H-1
|
IX
HAZARD/FLOOD INSURANCE REQUIREMENTS
|
H-16
|
|
X
ESCROW HOLDBACK FOR REPAIRS
|
H-18
|
|
XI
PMI/MI REQUIREMENTS
|
H-19
|
|
XII
LENDER-PLACED POOL INSURANCE
|
H-21
|
|
XIII
LOSS DRAFT
|
H-22
|
|
XXIV
LIEN RELEASE
|
▇-▇▇
|
|
▇▇▇▇▇▇▇
|
▇-▇▇
|
|
▇▇
DISHONORED AND MISAPPLIED PAYMENTS
|
H-24
|
|
ATTACHMENT
1 - Electronic Data File
|
H-25
|
|
ATTACHMENT
2 - GMAC MORTGAGE ADDRESSES
|
▇-▇▇
|
|
▇▇▇▇▇▇▇▇▇▇
▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇ CONTACTS
|
H-28
|
|
ATTACHMENT
4 - SERVICING TRANSFER INFORMATION ENCLOSURE SHEET
|
H-29 |
|
ATTACHMENT
5 - CUSTOMER NOTIFICATION LETTER
|
H-29
|
|
ATTACHMENT
6 - ARM PLAN CODE
|
H-32
|
|
ATTACHMENT
7 - PROGRAMS
|
▇-▇▇
|
|
▇▇▇▇▇▇▇▇▇▇
▇ - ▇▇▇▇▇▇ Claim Information
|
H-35
|
H-2
I
MANUAL
TRANSFERS
For
any
portfolio determined to be a manual conversion process, Seller will provide
the
following for each loan included in the manual transfer:
|
A)
|
Electronic
Data Files (▇▇▇▇▇)
|
|
1.
|
Company
will provide a test file (via email in Excel format) of the
Electronic
Data File (see below) no later than 30 days prior to the Transfer
Date.
Within 48 hours of receipt, GMAC Mortgage will review the file
and advise
Seller of any problems. GMAC Mortgage may request the Company
to transmit
additional information.
|
|
2.
|
Within
1 Business Day after the Transfer Date, Company shall provide
a final
Electronic Data File (data as of Transfer Cutoff Date) of the
required
fields listed below for each loan. Such file shall be sent
via email in
Excel format (WinZip file with password or encrypt with PGP).
Within 24
hours of receipt, GMAC Mortgage will review the file and advise
Seller of
any problems.
|
|
3.
|
All
electronic files shall be delivered (via Email) to ▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
|
|
4.
|
Loans
on Electronic Data Files received in the last three (3) Business
Days of
the month will not be guaranteed to be on GMAC Mortgage’s servicing system
by month-end. Any loans which are not on GMAC Mortgage’s servicing system
will not be included on month-end
reports.
|
Fields
to
be on the Electronic Data File, in the layout order specified. Fields
should be
populated with value, dollar, zero or blank. Do not use NA. See field
specifications in Attachment 1 (Excel spreadsheet).
|
1. Agency
Pool # (if applicable)
|
2. Agency
loan number
|
3. GMAC
MORTGAGE assigned loan number
|
|
4. Company
loan number
|
5. Current
UPB
|
6. Agency
Issued UPB
|
|
7. Escrow
balance
|
8. Buydown
Subsidy balance
|
9. Suspense
balance
|
|
10. Accrued
Late Charge balance
|
11. Late
Charge percentage
|
12. Late
Charge option
|
|
13. Note
Rate
|
14. Pass
Thru Rate
|
15. Net
Service Fee Rate
|
|
16. Agency
Guaranty Fee Rate
|
17. P&I
Payment
|
18. T&I
Payment
|
|
19. Total
Customer Payment
|
20. First
Payment Due Loan
|
21. Current
Due Date
|
|
22. Origination
Date
|
23. Maturity
Date
|
24. Pool
Issue Date
|
|
25. Remittance
Type/Date
|
26. Loan
Term
|
27. Loan
Purpose
|
|
28. Financial
Plan Code
|
29. Number
of Units
|
30. Original
Loan Amount
|
|
31. Appraised
Value
|
32. Original
LTV Percent
|
33. Property
Type
|
|
34. Occupancy
Code
|
35. Customer
Last Name
|
36. Customer
First Name
|
|
37. Customer
Middle Name
|
38. Co-Customer
Last Name
|
39. Co-Customer
First Name
|
|
40. Co-Customer
Middle Name
|
41. Property
Street Address
|
42. Property
City
|
|
43. Property
County Name
|
44. Property
State
|
45. Property
Zip Code
|
|
46. Mailing
Street Address
|
47. Mailing
City
|
48. Mailing
State
|
|
49. Mailing
Zip Code
|
50. Customer
Home Telephone
|
51. Customer
Work Telephone
|
|
52. Miscellaneous
Cost
|
53. Customer
Social Security
|
54. Co-Customer
Social Security
|
H-3
|
55. Tax
Service Fee
|
56. Flood
Insurance Required
|
57. Escrow
Tax monthly
|
|
58. Monthly
Escrow Property Insurance
|
59. Monthly
Escrow PMI
|
60. PMI/MI
Company Code
|
|
61. PMI/MI
Company Policy
|
62. PMI
Pool Code
|
63. PMI
Pool Policy Number
|
|
64. Delinquency
Indicator
|
65. Agency
Funding Date
|
66. Loan
Type
|
|
67. Sales
Price
|
68. Assumption
Allowed
|
69. Prepayment
Penalty
|
|
70. MERS
Min #
|
71. GMAC
MORTGAGE Company ▇▇
|
▇▇. ▇▇▇
▇▇▇▇▇ #
|
|
▇▇. MI
% Coverage
|
74. Points
|
75. Cash
Settlement Interest
|
|
76. GM/GM
Refi Loan Number
|
77. Grace
Days
|
78. MI
Up-front Premium
|
|
79. Margin
|
80. Max
Interest Rate
|
81. Min
Interest Rate
|
|
82. Tax
Contract Number
|
83. Non
Cash Settlement Interest
|
84. Product
Code
|
|
85. MERS
MOM Flag
|
86. MERS
Registered Flag
|
87. MERS
Quality Review Flag
|
|
88. Affinity
Name
|
89. MI
Cancellation Date
|
90. MI
Termination Date
|
|
91. Fidelity
Fund Source
|
92. Lien
Type
|
93. Flood
Zone
|
|
94. Flood
Vendor
|
95. Flood
Certificate Number
|
96. Buydown
Original Total Term
|
|
97. Buydown
Term
|
98. 1st
Buydown Subsidy Amount
|
99. 2nd
Buydown subsidy amount
|
|
100. Original
Buydown Balance
|
101. FNMA
Timely Payment Reward Code (Cash delivery only)
|
102. Converted
Arm to Fixed Rate
|
|
103. Converted
Construction Loan
|
104. FHLMC
Alt A Program Loan
|
105. Sellers
Correspondent ID
|
|
106. RHS/RECD/Target
Lending Initiative Loan
|
107. Program
Type
|
108. Converted
Balloon loan
|
|
109.
Documentation Type (characteristics)
|
110. A
minus Credit Quality Program
|
111. Prepayment
Penalty Loan %
|
|
112. PI
Change Date
|
113. Interest
Rate Change Date
|
114. Look
back days
|
|
115. Index
|
116. Rate
Change Frequency
|
117. Payment
Change Frequency
|
|
118. Rounding
Factor
|
|
B)
|
Servicing
Files
|
|
1.
|
Company
shall deliver to GMAC Mortgage a servicing file for each loan
in the
Manual Transfer. Files will contain, but not be limited to,
the documents
identified below (as applicable) which are critical for boarding
the loans
to GMAC Mortgage’s system:
|
|
·
|
Legal
Description (Exhibit A) / Tax Contract
(copy)
|
|
·
|
Homeowner
authorization if NY or NJ
|
|
·
|
Copy
of Note with all riders
|
|
·
|
Buydown
agreement/rider
|
|
·
|
Copy
of recorded Mortgage/Deed of Trust with riders (if recorded
copy is not
available; provide copy of unrecorded
document)
|
|
·
|
Funding
Letter/First Payment Letter
|
|
·
|
RESPA/Escrow
Account Disclosure
|
|
·
|
HUD-1
Settlement Statement - final
|
|
·
|
Loan
Application Form 1003 (initial and final signed
application)
|
H-4
|
·
|
Appraisal/PSAR
(with all attachments)
|
|
·
|
Certificate
of Flood Zone Rating
|
|
·
|
Evidence
of Insurance
|
|
·
|
Applicable
Mortgage Insurance: PMI commitment, FHA MIC, VA
LGC
|
|
·
|
PMI
Disclosure statement
|
|
·
|
Tax
Certification
|
|
·
|
System
master file record
|
|
·
|
Payment
history from origination to current
year-to-date
|
|
2.
|
Please
refer to Section V for information on file labels and
shipping.
|
H-5
II
GENERAL REQUIREMENTS
DEFINITIONS
For
the
purpose of these Transfer Instructions, unless otherwise indicated, all
terms
shall have the meanings defined in the Agreement, dated as of February
1, 2006,
between Mortgage IT (Company) and GMAC Mortgage Corporation
(Servicer).
|
·
|
Transfer
Date: The date GMAC Mortgage will assume physical servicing
of the
mortgage loans. Such date to be established by Company and
GMAC
Mortgage.
|
|
·
|
Transfer
Cutoff Date: The end of business on the Business Day immediately
preceding
the Transfer Date.
|
TRANSFER
OF RECORDS
Seller
shall ensure all documents, files, reports, and similar items are delivered
to
GMAC Mortgage. Any documents transferred from Company to GMAC Mortgage
at any
time in connection herewith shall include GMAC Mortgage’s loan number and be
grouped based on type of material, e.g. insurance, tax, customer
service.
All
files and related information as detailed within these Transfer Instructions
must be received by GMAC Mortgage no later than three (3) Business Days
after
Transfer Date
unless
otherwise designated.
Unless
indicated otherwise, all information in this Exhibit required effecting
the
transfer and all information received subsequent to the transfer, will
be
delivered to GMAC Mortgage as follows:
GMAC
Mortgage Corporation
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
A)
|
ASSIGNMENT
OF GMAC MORTGAGE LOAN NUMBERS
|
|
1.
|
GMAC
Mortgage will provide loan numbers for Company to assign and
use in data
and record transmissions. Company will assign all loan numbers
in
sequence.
|
| B) |
SUSPENSE/CORPORATE
BALANCES *if
applicable
|
|
1.
|
Report
in loan number order to reflect the negative suspense and/or corporate
advance, and attach sufficient written documentation to support
the
advance.
|
C) INTEREST
ON ESCROW REQUIREMENTS *if
applicable
H-6
|
1.
|
Company
will be responsible for posting interest on escrow for each loan
on which
the property is located in an area that requires interest to be
paid on
escrow accounts, from the closing date of the loan to receipt of
loan data
by GMAC Mortgage.
|
|
D)
|
YEAR-END
REPORTING
|
|
1.
|
Company
will report to the IRS and provide to Mortgagor all 1099 forms
required
reflecting the amount of interest and discount points paid at time
of loan
closing and any interest paid prior to the Transfer Date. Interest
paid on
subject mortgage loan while GMAC Mortgage is servicer of record
will be
reported by GMAC Mortgage.
|
| E) |
BUYDOWN
REQUIREMENTS *
if applicable
|
|
1.
|
List
of all loans in the transfer with buydown subsidy. If loans are
not
identified, GMAC Mortgage will ▇▇▇▇ Company for costs associated
with the
manual identification of a buydown
loan.
|
|
2.
|
Copy
of each Buydown Schedule, Buydown Agreement and HUD1 in the Mortgage
Loan
file to include the following for each
account:
|
|
a)
|
Loan
number
|
|
b)
|
Original
loan amount
|
|
c)
|
First
payment due date
|
|
d)
|
Current
monthly buydown payment amount
|
|
e)
|
Next
buydown payment change due date
|
|
f)
|
Next
buydown payment change amount
|
|
g)
|
Remaining
buydown funds balance
|
|
h)
|
Indicate
whether Lender Funded, Builder Funded or Present
Value
|
|
3.
|
All
Buydown balances must be fully funded and, at the time of transfer,
the
balance must be equal to the calculated balance of the buydown
subsidy as
detailed in each buydown schedule.
|
|
F)
|
MULTIPLE
CO-BORROWERS
|
|
1.
|
For
each loan with multiple co-borrowers (more than a primary and one
co-borrower), Company shall provide a listing, in Excel format,
to contain
the following information:
|
|
a)
|
GMAC
Mortgage loan number
|
H-7
|
b)
|
Co-borrower
names
|
|
c)
|
Social
Security numbers
|
| G) |
CLOSING
ESCROW BALANCES *if
applicable
|
|
a)
|
Company
shall ensure all escrow funds collected at closing have been deposited
into the customer’s escrow account
|
H) SECOND
MORTGAGES *if
applicable
|
1.
|
For
each second mortgage included in the transfer, Company shall ensure
the
holder of the first mortgage is notified of the servicing transfer.
Copies
of such notifications are to be provided to GMAC Mortgage in the
Servicing
File.
|
|
2.
|
Listing
of these loans to include: name, address and phone number of the
mortgage
company that services the first
mortgage.
|
| I) |
GRADUATED
PAYMENTS *if
applicable
|
|
1.
|
Listing
in loan number order, of all GPM loans involved in the transfer
to
include, but not be limited to the following for each
account
|
|
a)
|
Loan
number
|
|
b)
|
Current
payment amount
|
|
c)
|
Next
effective payment change date
|
|
d)
|
Effect
payment amount with next change
date
|
|
e)
|
Deferred
Interest Balance
|
|
f)
|
Agency
document
|
| J) |
ARM
OR BALLOON LOANS *if
applicable
|
|
1.
|
For
each Adjustable Rate Mortgage Loan having an interest change date
within
15-30 Days after the Transfer Date, Company warrants periodic Interest
Rate and payment adjustments have been made and the customer has
been
notified of such adjustments as specified by the Note. A listing
of loans
that were not adjusted due to the release of the index shall be
provided.
|
|
2.
|
Provide
a listing of balloon loans or code appropriately on Attachment
1.
Attachment 6 identifies GMAC Mortgage’s ARM and Balloon plan codes for
coding on the Electronic Data File.
|
| K) |
PROGRAM
DELIVERIES *if
applicable
|
H-8
|
1.
|
Attachment
7 identifies GMAC Mortgage’s program codes for coding on the Electronic
Data File.
|
|
L)
|
RETENTION
OF SUPPORTING DOCUMENTATION
|
|
1.
|
Subsequent
to the Transfer Date, Company will provide GMAC Mortgage, upon
request,
payment histories, canceled checks, vouchers, bills and other pertinent
documents within five business days of written request by GMAC
Mortgage to
assist GMAC Mortgage in disputes with outside agencies, other than
the
titleholder or attorney (e.g. taxing authorities, PMI companies,
hazard
insurance companies, etc.). In those situations involving attorneys
or
disputes with the customer, Company will provide requested information
within 48 hours of written request.
|
|
M)
|
SOLDIERS’
AND SAILORS’ CIVIL RELIEF ACT OF 1940
(SSCRA)
|
|
1.
|
Company
shall provide a listing of all SSCRA loans in loan number order,
in Excel
format on diskette, to include the
following:
|
|
a)
|
If
subsidized,
provide Soldier and Sailor subsidy with subsidy start date, payment
subsidy amount and full P&I amount -OR-
|
|
b)
|
If
interest rate reduced to 6%,
provide start date
|
|
c)
|
Copy
of government work order
|
|
d)
|
Copies
of Note and Loan Application
|
|
e)
|
Payment
schedule showing full funding to date of
shortage
|
|
2.
|
Company
must file claims as applicable for reimbursement of funds expensed
during
the time they serviced the loan.
|
H-9
III
MISCELLANEOUS
Unless
otherwise stated, use Attachment 4 for the following:
|
A)
|
PAYMENTS
RECEIVED AFTER TRANSFER DATE
|
As
applicable, forward payments to GMAC Mortgage, identifying all loans with
GMAC
Mortgage loan number, on the day received by overnight delivery service to
Payment Processing Unit. Checks shall be securely bundled in the same order
as
listed on Attachment 4.
|
1.
|
Identify
all checks with GMAC Mortgage’s loan number in the upper right corner, and
endorse as follows:
|
Pay
to the Order of GMAC Mortgage without Recourse
By
______________________________________________________________________
(Signer’s
Name)
(Signer's
Title)
(Company
Name)
|
2.
|
Checks
that include funds for multiple accounts--provide detail listing
with GMAC
Mortgage’s loan number and the amount due to each account.
|
|
3.
|
Payoff
checks received, but not applied as of Transfer Cutoff Date, shall
be
identified with GMAC Mortgage’s loan number, be properly endorsed and
forwarded to GMAC Mortgage as follows: Attn: ▇▇▇▇▇▇ ▇▇▇▇▇/Payoff
Processing, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
|
|
B)
|
CORRESPONDENCE
RECEIVED AFTER TRANSFER DATE
|
All
correspondence, insurance renewals, cancellation notices, customer inquiries,
etc., received after the Transfer Date should be grouped accordingly and
identified with GMAC Mortgage’s loan number and forwarded to GMAC Mortgage on a
daily basis. Any materials received by Company which reasonably requires
expedited handling to protect the security, the Company’s interest, or the
reasonable needs or obligations of GMAC Mortgage as Servicer, then all such
materials shall be sent by overnight delivery.
|
C)
|
RETURN
MAIL
|
|
1.
|
Company
will ensure all return mail is forwarded to GMAC Mortgage, (including
the
envelope with forwarding address information received on returned
“Goodbye” letter).
|
H-10
IV
CUSTOMER NOTIFICATION
|
A)
|
Company
will ensure all Mortgagors are notified of the transfer and when
and where
to make payments after the Transfer Date. The letter affecting
such
notification shall be subject to review and approval by GMAC Mortgage.
Such notification shall be provided no later than fifteen days
prior to
the Transfer Date.
|
|
B)
|
To
assist in an efficient transfer process, the customers, and all
individuals involved should be aware of the
following:
|
|
1.
|
GMAC
Mortgage will provide each Mortgagor with a new loan number and
will
provide a mortgage account statement as soon as the loans are set
up on
our system. Please advise customers to remit future payments to
the
address listed below, until they begin receiving mortgage account
statements from GMAC Mortgage:
|
GMAC
Mortgage Corporation
Attn:
Payment Processing
▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
2.
|
GMAC
Mortgage will be responsible for IRS reporting for the period of
time that
GMAC Mortgage services the loan (1st payment to due GMAC Mortgage
through
year-end). Company will be responsible for IRS reporting for the
prior
period of time.
|
|
3.
|
GMAC
Mortgage does not collect Condo association dues with the monthly
payment.
If condominiums are included in this transfer and you presently
collect
association fees, the Mortgagor should be advised to pay those
fees
directly to the association.
|
|
4.
|
GMAC
Mortgage provides the following toll-free Customer Service number
for
customer inquiries: ▇-▇▇▇-▇▇▇-▇▇▇▇. Customer Service hours are
Monday
through Friday 7 a.m. to 9 p.m. CT, and Saturday 9 a.m. to 1 p.m.
CT.
|
|
5.
|
Advise
the customer their optional insurance coverage is not transferable.
|
|
6.
|
Advise
the customer their automatic payment option is not transferable.
GMAC
Mortgage does offer an automatic payment option and customers may
enroll
in this service after transfer.
|
|
7.
|
GMAC
Mortgage offers web site and email capabilities to its
customers.
|
Customers
should
be advised to forward written inquiries to the following address:
GMAC
Mortgage Corporation
Attn:
Customer Service Department
▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
**Sample
copy of Customer Notification Letter (Attachment 5).
**This
letter encompasses the necessary required regulations in the Servicing
Regulation 1990 Housing Act .
H-11
V
SERVICING FILES
|
A)
|
Servicing
files shall contain the documents as defined in Section I B.
|
|
1.
|
Files
will be organized consistently.
|
|
2.
|
Secure
documents with a two-hole fastener at the top center, in a legal
size
folder.
|
|
3.
|
Files
shall be labeled as follows:
|
|
a)
|
Company
shall create bar-coded labels and affix them to the files. GMAC
Mortgage
will provide direction for creating labels under separate
cover.
|
|
4.
|
Files
shall be boxed in the GMAC Mortgage’s loan number
order.
|
|
B)
|
Servicing
Files to be delivered to GMAC Mortgage’s office 3 Business Days after the
Transfer Date via insured shipping as
follows:
|
|
1.
|
Boxes
should be standard size (15”L x 12”W x 10”H) with double wall construction
and separate lids. Please ensure boxes are in good condition. Boxes
should
weigh between 30 to 35 pounds. If the number of files being shipped
will
not completely fill the standard box size, a smaller box size (e.g.,
FedEx
box) can be used. Boxes larger than the standard size are not
acceptable.
|
|
2.
|
A
packing list shall be included for validation of receipt by GMAC
Mortgage.
|
|
3.
|
Servicing
Files should be shipped to:
|
Mailing
Address:
GMAC
MORTGAGE CORPORATION
Loan
Set-Up Department
ATTN:
Mail Desk
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
H-12
VI
MERS
|
A)
|
Provide
GMAC Mortgage with appropriate data at Transfer Date (in Electronic
Data
File)
|
|
1.
|
MERS
min number
|
|
2.
|
Identification
of a MOM (MERS as Original Mortgagee) loan
|
|
3.
|
MERS
registered flag
|
|
4.
|
MERS
quality review flag
|
|
B)
|
MERS
org numbers are as follows:
|
|
1.
|
1000375
- GMAC Mortgage should be listed as
servicer.
|
|
2.
|
1001262
- Company (Mortgage IT) should be listed as
investor
|
|
C)
|
Company
shall complete the transfer of servicing right to GMAC Mortgage
(org ID
1000375) and complete the transfer of beneficial rights to Company
(org ID
1001262).
|
|
D)
|
For
any loans not previously registered with MERS, GMAC Mortgage has
the
ability to register loans with MERS for a $5.00 fee (fee subject
to change
with 30 day notice). Please contact the MERS Administrator for
further
details.
|
|
E)
|
Company
is responsible for all transfer fees associated with
MERS.
|
|
F)
|
Company
shall pay for all loans transferred on MERS in
error.
|
|
G)
|
For
any MERS non-MOM
loans, Company shall ensure an assignment to MERS has been executed
and
sent for recording. Company will transmit the recording data to
MERS upon
receipt.
|
H-13
VII
CASH
MOVEMENT
|
A)
|
Escrow
balance, suspense balance, and any special escrow reflected as
of Transfer
Cutoff Date will be transferred to GMAC Mortgage within 24 hours
after
Transfer Date using the wiring instructions
below:
|
GMAC
Mortgage Corporation
First
Union
ABA#
▇▇▇▇▇▇▇▇▇
ACCT#
2100018728719
REF:
Attn: Mortgage IT Flow & Transfer Date (mmddyy)
H-14
VIII
TAX
REQUIREMENTS
(As
Applicable)
|
A)
|
Ordering
Tax Service
|
GMAC
Mortgage will order the tax contract if Company does not provide a First
American tax contract number in the Electronic Data File. Cost for the contracts
shall be $85.00 per loan to be paid by Company.
|
B)
|
Payment
of Taxes and Assessments
|
Company
shall pay, prior to the Transfer Date, property taxes and/or assessments
for
loans with escrow accounts that are due or will become delinquent up to the
Transfer Cutoff Date as well as those due within 30 days after the Transfer
Date
where bills/tax amounts are available.
|
C)
|
For
each escrowed account, Company will provide a listing of taxes
which are
due within 30 days following the Transfer Date and remain unpaid
to
include the following:
|
|
1.
|
Loan
number
|
|
2.
|
Tax
type (e.g., county, school, city)
|
|
3.
|
Tax
due date
|
|
4.
|
Tax
amount due or last paid amount, whichever is
applicable
|
|
5.
|
Tax
identification number (parcel
number)
|
|
6.
|
Payee
associated with each parcel
|
|
D)
|
Escrowed
for Defined Timeframe
|
Company
will provide a listing of all loans having a predetermined period for taxes
to
be maintained, to include, but not limited to:
|
1.
|
GMAC
Mortgage loan number
|
|
2.
|
Period
of required escrow
|
|
3.
|
Type
of taxes
|
|
4.
|
Customer
name
|
*Please
update the Product Code (column 84 in Electronic Data File)
accordingly.
|
E)
|
Forward
documentation of any special tax problems to our Tax Department
(see
Attachment 2).
|
H-15
IX
HAZARD/FLOOD INSURANCE REQUIREMENTS
(As
applicable)
|
A)
|
Insurance
Premium Payment
|
|
1.
|
Company
shall pay, prior to the Transfer Date, all insurance premiums due
prior to
the Transfer Date and within 30 days subsequent to the Transfer
Date where
bills have been received prior to the Transfer
Date.
|
|
B)
|
For
each escrowed account, Company will provide a listing of insurance
premiums which are due within 30 days following the Transfer Date
and
remain unpaid to include the
following:
|
|
1.
|
Loan
number
|
|
2.
|
Payee
|
|
3.
|
Policy
number
|
|
4.
|
Coverage
Amount
|
|
5.
|
Effective
Date of Coverage
|
|
6.
|
Expiration
Date of Coverage
|
|
7.
|
Premium
Amount
|
|
C)
|
If
applicable, Company shall provide a listing of loans on lender
placed
hazard/binder coverage.
|
|
D)
|
Company
shall ensure all loans have life of loan flood contracts.
|
|
1.
|
If
no contracts are in place at the time of transfer, GMAC Mortgage
will
order life of loan flood contracts with First American. Cost for
the
contracts shall be $19.00 to be paid by
Company.
|
|
2.
|
Life
of loan flood contracts with First American (FAFDS f/k/a FDSI)
or Fidelity
(FNFS) can transfer at no charge. Company shall notify First American
and/or Fidelity to transfer the flood contracts to GMAC Mortgage.
|
|
3.
|
Life
of loan flood contracts with any provider other than FAFDS or FNFS
can be
converted at a $2.00 fee if Company provides the following information
(data may be provided in ▇▇▇▇▇ file or sent in a separate file).
Company
shall notify the flood provider(s) to cancel the
contract(s).
|
|
4.
|
Company
loan number
|
H-16
|
5.
|
Purchaser
loan number
|
|
6.
|
Customer
name
|
|
7.
|
Property
address
|
|
8.
|
Vendor
name
|
|
9.
|
Certificate
number
|
|
10.
|
Flood
Zone
|
|
E)
|
Change
Endorsements
|
|
1.
|
Company
shall prepare and submit to each hazard/flood carrier an original
Notice
of Change of Mortgagee Clause (loss payable clause) for each loan
included
in the transfer. The mortgagee clause should
read:
|
GMAC
Mortgage
Its
successors and/or assigns
▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
|
F)
|
Documentation
required in the Servicing File:
|
|
1.
|
Original
or commitment of the homeowner’s, fire and flood insurance policies in the
Servicing File.
|
|
2.
|
FEMA
Standard Flood Hazard Determination, in the Servicing File, Form
pursuant
to the National Flood Insurance Reform Act of 1994.
|
|
3.
|
Loans
secured by condominiums and town homes may have individual Certificates
of
Insurance; however, provide a copy of the Master Policy listing
for each
condominium or town home project as
applicable.
|
|
4.
|
Forward
documentation of any special insurance problems to our Insurance
Department under separate cover. (See Attachment
2)
|
H-17
X
ESCROW
HOLDBACK FOR REPAIRS
(As
applicable)
|
A)
|
Company
shall administer all outstanding items relating to Escrow Holdback
for
repairs.
|
|
B)
|
Company
shall provide a listing for of loans with Escrow Holdback for
Repairs.
|
H-18
XI
PMI/MI
REQUIREMENTS
(Mortgage
Insurance)
|
A)
|
PMI/MI
Requirements, as applicable:
|
|
1.
|
Detailed
documentation of the loans and of each MI
program:
|
|
a)
|
Corporate
paid - Monies paid by servicer for premiums due to error being
made.
(e.g., Disclosure issue) Funds are not paid from the customers
escrow
account. Life of loan coverage needs to be placed on these accounts
prior
to loan transfer.*
|
|
b)
|
Lender
paid - Funds disbursed out of separate account. When the loan was
established the interest rate was adjusted to pay these premiums.
(Funds
are not paid from the customers escrow
account)*
|
|
c)
|
Escrow
paid - MI premiums are escrowed into the monthly payment paid by
the
customer and premiums being paid to the MI companies are disbursed
from
this account.*
|
|
d)
|
Escrowed
PMI with a cancelled coverage - These would be loans we are collecting
funds from customer but due to non-payment of premiums the coverage
has
been cancelled. These items are treated differently as to when/if
we are
able to reinstate the coverage.*
|
|
e)
|
Cancelled
commitments - These premiums would have been cancelled due to lack
of
information or payment made at closing. These items need to have
life of
loan coverage placed prior to transfer and we need to be provided
a report
of these accounts. *
|
*Provide
separate reports for A through E to include the GMAC Mortgage loan number,
certificate number, and premium due date.
|
f)
|
Special
programs - Types of premiums not categorized
above.
|
i) GMAC
Mortgage loan number
ii) Type
of
waivers, or
iii) Reduced
MI over term, etc.
|
2.
|
Company
shall pay all mortgage insurance premiums which will become due
during the
time they service the loan(s).
|
|
B)
|
PMI/MI
Notification
|
H-19
|
1.
|
Company
shall notify the PMI/MI companies of the transfer of servicing
to GMAC
Mortgage. Send copies of the notifications to GMAC Mortgage’s MI
Department. Include on the notice, the GMAC Mortgage loan number,
master
policy number, and instructions to send renewal ▇▇▇▇▇▇▇▇ and
correspondence to:
|
GMAC
Mortgage Corporation, its successors and/or assigns
ATTN:
MI
Department
▇.▇.
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
C)
|
Cancellation
and Termination Dates
|
|
1.
|
Cancellation
Dates and Termination Dates shall be provided in the Electronic
Data
File.
Company ensures all the data is accurately populated (columns 89
and
90).
|
H-20
XII
LENDER-PLACED POOL INSURANCE
*if
applicable
|
A)
|
Listing
of any Pool insured loans sorted by investor under separate cover,
to
include:
|
|
1.
|
Company
and insurer loan number
|
|
2.
|
Mortgagor’s
Name
|
|
3.
|
Loan
type
|
|
4.
|
Pool
insurance carrier
|
|
5.
|
Payee
cross-reference listing
|
|
6.
|
Next
premium due date
|
|
7.
|
Actual
Certificate number
|
|
8.
|
Premium
Amount
|
|
9.
|
Paid
by (is premium paid by investor, Company,
etc.)
|
|
10.
|
Master
Policy Number
|
|
11.
|
Pool
Expiration Date
|
|
B)
|
Company
shall notify the pool insurance carrier of the transfer of servicing
and
provide evidence of such notification.
|
|
C)
|
Master
policies for all pool policies involved in the
transfer.
|
H-21
XIII
LOSS
DRAFT
|
A)
|
Information
Required on Loss Drafts Pending
|
|
1.
|
Listing
of all loans which have a pending loss draft to include amount
of money on
deposit for each loss draft. This listing shall include pending
claims for
loans in foreclosure.
|
|
2.
|
In
addition to this listing, GMAC Mortgage should receive a loss draft
file
for each loan, which contains the following information, properly
documented:
|
|
a)
|
Completed
cover sheet (Attachment 8) attached to outside of the loss draft
file.
|
|
b)
|
Date
of loss
|
|
c)
|
Cause
of loss
|
|
d)
|
Amount
of loss
|
|
e)
|
Amount
of insurance proceeds received to date
|
|
f)
|
Information
received from contractors or records of conversation with contractors
|
|
g)
|
Correspondence
from and/or record of conversation with customers and insurance
companies
|
|
h)
|
Status
report on repairs
|
|
i)
|
Inspection
reports, if any
|
|
j)
|
Report
on receipt of future proceeds, if expected (i.e. date expected,
amount,
etc.)
|
|
B)
|
Wire/ACH
the balances of all monies in a restricted field for loss drafts
in the
timeframes stipulated within the Agreement, to be included in the
wire
transfer of escrow funds.
|
|
C)
|
Interest
on loss draft funds shall be paid directly to the customer prior
to the
Transfer Date for all loans in the state of NY, and all Federally
Declared
Disaster areas (this includes any investor, any state, and for
every day
the funds are held).
|
▇-▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
|
▇)
|
As
further detailed below, Company shall provide an electronic file
via email
(ASCII file), diskette (ASCII file), or 3490 cartridge, depending
on the
size of the file. Regardless of the media, the record length must
be
fixed at 5364. See
Attachment 11 for vendor
layout
|
|
1.
|
On
a monthly basis, Company shall provide a text file of the following
information:
|
|
a)
|
GMAC
Mortgage Loan Number
|
|
b)
|
Deed/Mortgage
origination date
|
|
c)
|
Recording
date of Deed/Mortgage
|
|
d)
|
Recording
information (instrument, book, page,
etc.)
|
|
e)
|
Trustor/mortgagor
vesting
|
|
f)
|
Original
beneficiary/mortgagee
|
|
g)
|
Original
trustee
|
|
h)
|
Legal
description (parcel, lot, block,
section)
|
|
2.
|
All
electronic files shall be delivered to GMAC Mortgage as
follows:
|
GMAC
Mortgage Corporation
Attn:
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Email
Address: ▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇.▇▇▇
PAYOFFS
|
A)
|
In
the event of a payoff, Company will provide GMAC Mortgage with
the
recording data needed to prepare a Release of Lien within 5 Business
Days
of request by GMAC Mortgage.
|
H-23
XV
DISHONORED AND MISAPPLIED PAYMENTS
|
A)
|
Dishonored:
Company will ensure the returned check has been presented twice
to the
bank for good funds prior to requesting reimbursement from GMAC
Mortgage.
Company will submit the following applicable documentation related
to
dishonored payment which was not reversed by Company prior to Transfer
Cutoff Date:
|
|
1.
|
Original
returned or dishonored payment should be provided and clearly reflect
the
reason the payment was dishonored (e.g. NSF, stop payment, etc.).
In the
case of a dishonored draft, adequate proof should be provided indicating
the bank rejected the draft.
|
|
2.
|
Payment
history from point of the dishonored payment to the Transfer Cutoff
Date
|
|
3.
|
GMAC
Mortgage shall reimburse Company the dishonored payment funds within
twenty (20) days of receipt of applicable
documentation.
|
|
B)
|
Misapplied
Payments:
“Misapplied payment” shall mean a Mortgagor payment for which funds have
been deposited in an incorrect Escrow Account or applied to an
incorrect
Mortgagor’s account. The existence of a canceled Mortgagor payment bearing
the endorsement of Company, for which funds have not been allocated
to the
proper Escrow Accounts, shall be considered conclusive evidence
of a
misapplied payment. Misapplied payments shall be processed as
follows:
|
|
1.
|
Both
parties shall cooperate in correcting misapplication errors by
providing
the payment history from point of error to the Transfer Cutoff
Date and a
copy of the canceled check bearing the endorsement of the servicer
responsible for the posting of the missing funds.
|
|
2.
|
The
party receiving notice of a misapplied payment occurring prior
to the
Transfer Date and discovered after the Transfer Date shall immediately
notify the other party.
|
|
3.
|
If
a misapplied payment cannot be identified by either party and said
misapplied payment has resulted in a shortage in a Mortgage account,
Company shall be liable for the amount of such shortage. Company
shall
reimburse GMACM for the amount of such shortage within twenty (20)
days
after receipt of written demand from
GMACM.
|
|
4.
|
Any
check issued under the provisions of this paragraph shall be accompanied
by a statement indicating the purpose of the check, the mortgagor
and
property address involved, and the corresponding Company and/or
GMACM
account number.
|
H-24
ATTACHMENT
1
Reserved
for Electronic Data File
▇-▇▇
▇▇▇▇▇▇▇▇▇▇
▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ADDRESSES
|
Express/Street
Address
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Transfer
Coordinator Accounting Coordinator Investor Reconciliation
|
Attn.:
Sales & Acquisitions
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Servicing
Files
|
Attn.:
Loan Set-up Department
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Property
Tax Correspondence
|
Attn.:
Tax Department
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Mortgage
Insurance Correspondence
|
Attn.:
PMI Department
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Hazard
Claim Issues
|
Attn:
Hazard Claims
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Hazard/Flood
Insurance Correspondence
|
GMAC
Mortgage
%
ZC Sterling
▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Customer
Inquiries
|
Attn.:
Customer Service
▇.▇.
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Loan
Payments/Misapplied/NSF
|
Attn.:
Payment Processing ▇▇▇▇
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Default
Inquires
|
Attn:
Default ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
H-26
|
Payoff
Funds
|
Attn.:
Payoff Unit Residential Servicing
▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Document
Request
|
Attn.:
Document Management
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
|
|
Wire
Funds Address
PI
& TI only
|
Beneficiary
Name: GMAC Mortgage Corporation
Beneficiary
Bank: First Union
ABA
#: ▇▇▇▇▇▇▇▇▇
A/C
#: 2100018728719
Ref.:
Mortgage IT
|
|
All
other communications to
|
Attn.:
Sales and Acquisitions
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇-▇▇
▇▇▇▇▇▇▇▇▇▇
▇
▇▇▇▇
▇▇▇▇▇▇▇▇ CONTACTS
|
Department
|
Name
|
Phone
|
|
Transfer
Coordinator
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
ARM
Conversions,
|
▇▇▇▇▇▇
▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
ARM
Set-up
|
▇▇▇▇
▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Assumptions
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Automatic
Payment Plans
|
▇▇▇▇
▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Balloon
Reset
|
▇▇▇▇▇▇
▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Bankruptcy
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Buydown
Subsidy; SSCRA
|
▇▇▇▇
▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Customer
Service/VRU - toll free
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Escrow
Analysis
|
▇▇▇▇
▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Hazard
Claims
|
▇▇▇▇
▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Hazard
Insurance
|
▇▇▇▇
▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Investor
Reporting
|
▇▇▇▇
▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Loan
Set-up Department - ▇▇▇▇▇ file
|
▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
MERS
Administrator
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Mortgage
Liens
|
▇▇
▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Payment
Processing/Misapplied/NSF
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ or
▇▇▇▇
▇▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Payoffs
|
▇▇▇▇
▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
Assistant
Accounting Coordinator/Cash Reconciliation
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇- ▇▇▇▇▇▇▇
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
Fax
Number (▇▇▇)
▇▇▇-▇▇▇▇
Email
▇▇▇▇▇_▇▇▇▇@▇▇▇▇▇.▇▇▇
Example:
▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
▇-▇▇
ATTACHMENT
4
**For
use
in forwarding payments, payoff checks, correspondence, bills, renewals,
etc.
SERVICING
TRANSFER
INFORMATION
ENCLOSURE SHEET
DATE:
______________________ TRANSFER CUTOFF DATE: ______________________
TO:
GMAC
Mortgage
FROM
:________________________________
Sales
& Acquisitions
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
GMAC
MORTGAGE Loan Number
|
Last
Name
|
Check
Amount
|
Check
Number
|
Date
check received
|
Tax
|
Ins.
Info
|
Other
(please
detail)
|
H-29
ATTACHMENT
5
CUSTOMER
NOTIFICATION LETTER SAMPLE
DATE
CUSTOMER
NAME
CUSTOMER
ADDRESS
CUSTOMER
CITY, STATE, & ZIP CODE
|
RE:
|
SELLING
COMPANY ACCOUNT NUMBER
GMAC
Mortgage Account Number:
|
|
|
We
wish
to advise you that the "Servicing Rights" for your Mortgage Loan referenced
above have been sold. Effective (Transfer Date), GMAC Mortgage will be your
new
servicer. The original terms and conditions of your Mortgage Loan will remain
the same, and this transfer will have no effect on them.
Effective
(Transfer Date), please direct payments to GMAC Mortgage. All payments due
prior
to (Transfer Date) should be directed to (Selling Company Name).
GMAC
Mortgage will be contacting you to acknowledge this transfer and provide
you
with their Mortgage Account Statement. If you have not received a statement
before your next scheduled payment is due, please write your (Selling Company
Name) and the GMAC Mortgage account number referenced above on your check
and
remit your payment to the following address:
GMAC
Mortgage
Attention:
Payment Processing
▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
This
transfer will not affect your homeowners/hazard insurance. A notification
is
being sent to your hazard insurance carrier to send future insurance information
to GMAC Mortgage.
Your
optional insurance coverage is not transferable to GMAC Mortgage. For those
of
you who had optional insurance and are interested in obtaining replacement
coverage, please contact GMAC Mortgage at the customer service number listed
within this document.
If
you
are currently on automatic payment withdrawal, GMAC Mortgage is unable to
transfer the data. For those of you interested in utilizing automatic payment
withdrawal after the transfer, please contact GMAC Mortgage at the customer
service number listed within this document or visit our web site at www.GMAC
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
H-30
Customer
Name
Page
-2-
Date
If
you
are currently making your mortgage payment through government allotment or
have
established a third party relationship to automatically make payments on
your
behalf (other than automatic draft through your personal checking or savings
account), please ensure you take the necessary steps to advise them of your
new
loan number and change the payee to GMAC Mortgage Corporation.
You
should also be aware of the following information, which is set out in more
detail in section 6 of the real estate settlement procedures act (RESPA)
(12
U.S.C. 2605):
During
the 60-day period following the effective date of the transfer of the loan
servicing, a loan payment received by your old servicer before its due date
may
not be treated by the new loan servicer as late, and a late fee may not be
imposed on you.
Section
6
of RESPA (12 U.S.C. 2605) gives you certain consumer rights. If you send
a
“qualified written request” to your loan servicer concerning the servicing of
your loan, your servicer must provide you with a written acknowledgment within
20 business days of receipt of your request. A “qualified written request” is a
written correspondence, other than notice on a payment coupon or other payment
medium supplied by the servicer, which includes your name and account number,
and your reasons for the request.
Not
later
than 60 business days after receiving your request, your servicer must make
any
appropriate corrections to your account, and must provide you with a written
clarification regarding any dispute. During this 60-business day period,
your
servicer may not provide information to a consumer reporting agency concerning
any overdue payment related to such period or qualified written request.
However, this does not prevent the servicer from initiating foreclosure if
proper grounds exist under the mortgage documents.
A
business day is a day on which the offices of the business entity are open
to
the public for carrying on substantially all of its business functions.
Section
6
of RESPA also provides for damages and costs for individuals or classes of
individuals in circumstances where servicers are shown to have violated the
requirements of that section. You should seek legal advice if you believe
your
rights have been violated
Future
inquiries regarding the Servicing of your loan should be directed to GMAC
Mortgage. Their correspondence address and toll free telephone number are
as
follows:
GMAC
Mortgage
Attention:
Customer Service Department
▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
H-31
Toll
Free
Telephone number ▇-▇▇▇-▇▇▇-▇▇▇▇
Customer
Name
Page
-3-
Date
Customer
Service Hours
Monday
-
Friday 7:00 a.m. - 9:00 p.m. (CT)
Saturday
9:00 a.m. - 1:00 p.m. (CT)
It
has
been our pleasure to service your Mortgage Loan, and we wish you a successful
relationship with GMAC Mortgage. If you have any questions regarding the
transfer, please call our Customer Service Department at 1-800-XXX-XXXX ext.
XXXX.
Sincerely,
SELLING
COMPANY NAME
H-32
ATTACHMENT
6 - ARM PLAN CODE
|
Loan
Types - 1st Lien
|
ARM
Plan Code
|
|
WEEKLY
1 YEAR
|
|
|
1yr/1yr
ARM
|
Plan
1125
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, 2% period
caps
|
|
1yr/1yr
ARM
|
Plan
1001-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, Life time caps at
the first
adjustment and 2% period caps thereafter
|
|
3yr/1yr
ARM
|
Plan
1207
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, 2% period
caps
|
|
3yr/1yr
ARM
|
Plan
1201-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, Life time caps at
the first
adjustment and 2% period caps thereafter
|
|
5yr/1yr
ARM
|
Plan
1208
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, 2% period
caps
|
|
5yr/1yr
ARM
|
Plan
1218
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, Life time caps at
the first
adjustment and 2% period caps thereafter
|
|
7yr/1yr
ARM
|
Plan
1209
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, 2% period
caps
|
|
7yr/1yr
ARM
|
Plan
1219
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, Life time caps at
the first
adjustment and 2% period caps thereafter
|
|
10yr/1yr
ARM
|
Plan
1211
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, 2% period
caps
|
|
10yr/1yr
ARM
|
Plan
1210
-
Assuming a 45 Day Lead time, Wkly 1 Yr T-▇▇▇▇, Life time caps at
the first
adjustment and 2% period caps thereafter
|
|
1
YEAR LIBOR’S
|
|
|
1yr/1yr
ARM
|
Plan
1951
-
45 Day Lead time, 1 Year Libor(WSJ), 2% period caps
|
|
1yr/1yr
ARM
|
Plan
1952
-
45 Day Lead time, 1 Year Libor(WSJ), Life time caps at the first
adjustment and 2% period caps thereafter
|
|
3yr/1yr
ARM
|
Plan
1954
-
45 Day Lead time, 1 Year Libor(WSJ), 2% period caps
|
|
3yr/1yr
ARM
|
Plan
1191-
45 Day Lead time, 1 Year Libor(WSJ), Life time caps at the first
adjustment and 2% period caps thereafter
|
|
5yr/1yr
ARM
|
Plan
1179-
45 Day Lead time, 1 Year Libor(WSJ), 2% period caps
|
|
5yr/1yr
ARM
|
Plan
1189
-
45 Day Lead time, 1 Year Libor(WSJ), Life time caps at the first
adjustment and 2% period caps thereafter
|
|
7yr/1yr
ARM
|
Plan
1182-
45 Day Lead time, 1 Year Libor(WSJ), 2% period caps
|
|
7yr/1yr
ARM
|
Plan
1192
-
45 Day Lead time, 1 Year Libor(WSJ), Life time caps at the first
adjustment and 2% period caps thereafter
|
|
10yr/1yr
ARM
|
Plan
1946-
45 Day Lead time, 1 Year Libor(WSJ), 2% period caps
|
|
10yr/1yr
ARM
|
Plan
1956
-
45 Day Lead time, 1 Year Libor(WSJ), Life time caps at the first
adjustment and 2% period caps thereafter
|
|
6
Month LIBOR’S(45 day lookback)
|
|
|
6mo/6mo
ARM
|
Plan
6045 - 45
Day Lead time, 6 Month Libor(WSJ), 1% period
caps
|
|
6mo/6mo
ARM
|
Plan
6088 - 45
Day Lead time, 6 Month Libor(WSJ), 1.5% period
caps
|
|
3yr/6mo
ARM
|
Plan
6651 - 45
Day Lead time, 6 Month Libor(WSJ), 2% caps at the first adjustment
and 1%
period caps thereafter
|
|
5yr/6mo
ARM
|
Plan
6051 - 45
Day Lead time, 6 Month Libor(WSJ), Life time caps at the first
adjustment
and 1% period caps thereafter
|
|
7yr/6mo
ARM
|
Plan
6653 - 45
Day Lead time, 6 Month Libor(WSJ), Life time caps at the first
adjustment
and 1% period caps thereafter
|
|
10yr/6mo
ARM
|
Plan
6654 - 45
Day Lead time, 6 Month Libor(WSJ), Life time caps at the first
adjustment
and 1% period caps thereafter
|
|
6
Month Libor’s(1st business day 1 month before)
|
|
|
6mo/6mo
ARM
|
Plan
6040
-
1st business day 1 month before, 6 Month Libor(WSJ), 1.0%
caps
|
H-33
|
Loan
Types - 1st Lien
|
ARM
Plan Code
|
|
6mo/6mo
ARM
|
Plan
6041 - 1st
business day 1 month before, 6 Month Libor(WSJ), 1.5%
caps
|
|
6mo/6mo
ARM
|
Plan
6042 - 1st
business day 1 month before, 6 Month Libor(WSJ),2.0%
caps
|
|
6mo/6mo
ARM
|
Plan
6039 - 1st
business day 1 month before, 6 Month Libor(WSJ), 3%
caps
|
|
6mo/6mo
ARM
|
Plan
6013 - 1st
business day 1 month before, 6 Month Libor(WSJ), 2.0% caps at the
first
adjustment and 1% period caps thereafter
|
|
6mo/6mo
ARM
|
Plan
6049 - 1st
business day 1 month before, 6 Month Libor(WSJ), 3.0% caps at the
first
adjustment and 1% period caps thereafter
|
|
6mo/6mo
ARM
|
Plan
6027 - 1st
business day 1 month before, 6 Month Libor(WSJ), Lifetime caps
at the
first adjustment and 1% period caps thereafter
|
|
6mo/6mo
ARM
|
Plan
6028 - 1st
business day 1 month before, 6 Month Libor(WSJ), Lifetime caps
at the
first adjustment and 2% period caps thereafter
|
|
INTEREST
ONLY 6 Month LIBOR’S
|
|
|
3yr/6mo
ARM
|
Plan
I105
-
45 Day Lead time, 6 Month Libor(WSJ), 2% caps at the first adjustment
and
1% period caps thereafter
|
|
5yr/6mo
ARM
|
Plan
I106
-
45 Day Lead time, 6 Month Libor(WSJ), Lifetime caps at the first
adjustment and 1% period caps thereafter
|
|
7yr/6mo
ARM
|
Plan
I107
-
45 Day Lead time, 6 Month Libor(WSJ), Lifetime caps at the first
adjustment and 1% period caps thereafter
|
|
10yr/6mo
ARM
|
Plan
I108
-
45 Day Lead time, 6 Month Libor(WSJ), Lifetime caps at the first
adjustment and 1% period caps thereafter
|
|
15
yr FRM
|
FIXED
|
|
30
yr FRM
|
FIXED
|
BALLOON
PLAN CODES:
|
5
YR FHLMC
|
Plan
RP02
|
|
5
YR FNMA
|
Plan
RPO4
|
|
7
YR FHLMC
|
Plan
RPO6
|
|
7
YR FNMA
|
Plan
RP08
|
H-34
ATTACHMENT
7 - PROGRAMS
|
Flow
Programs
|
|
050
- Jumbo A
|
|
080
- FNMA 80/20 program
|
|
100
- FNMA Flexible 100 program
|
|
105
- Full Doc
|
|
150
- Full/Alt Doc
|
|
201
- Stated Income
|
|
202
- No Ratio
|
|
203
- NINA
|
|
301
- US Cit Employed Abroad
|
|
302
- Non-Perm Res Alien
|
|
303
- Foreign National Full Doc
|
|
305
- Foreign National Stated Income
|
|
401
- Non-Warrant Condo
|
|
402
- Rural Prop
|
|
403
- Mixed Use Prop
|
|
501
- 90% LTV no MI
|
|
502
- Lender Paid MI
|
|
503
- C/O with no MI
|
|
504
- Super Jumbo
|
|
600
- Preferred Customer Home Equity Loan
|
|
601
- Preferred Customer Home Equity Loan S.I.
|
|
910
- Stated Income/Stated Asset
|
|
997
- GMAC Select/Super Select
|
|
998
- Stated Assets/Income Verified
|
|
|
H-35
ATTACHMENT
8
HAZARD
CLAIM INFORMATION
DATE
________ LOAN NUMBER ______________ DOL __________ DMG TYPE
________
INVESTOR
_____ INVESTOR# _____ NEAR/TOTAL ___ REPORTED TO INVESTOR ____
MORTGAGOR
________________________________________________________________
LAST
NAME FIRST
NAME
CO-MORTGAGOR
_____________________________________________________________
LAST
NAME FIRST
NAME
PROPERTY
ADDRESS ______________________________________________________
________________________________________________________________________
CITY STATE ZIPCODE
TELEPHONE
#’S HOME
____________________ MR
WORK
___________________
OTHER
___________________ MRS
WORK
___________________
******************************************************************************
SELLING
COMPANY CONTACT NAME AND TELEPHONE # _______________________
CONTRACTOR
_______________________________________________________________
ADDRESS
____________________________________________________________________
TELEPHONE
# ________________________________________________________________
PUBLIC
ADJUSTER
___________________________________________________________
ADDRESS
____________________________________________________________________
TELEPHONE
# ________________________________________________________________
*****************************************************************************
CHECK
AMOUNT _______________ INS CO ______________ DEPOSITED
_____________
H-36
DISBURSEMENTS:
DATE
__________ CK AMT ___________ CK# ____________ BALANCE
______________
PAYABLE
TO _________ SENT TO ___ CONTR ___ TH ___ OTHER ___ REG ___ FED EX
DATE
___________ CK AMT __________ CK# ____________ BALANCE
______________
PAYABLE
TO _________ SENT TO ___ CONTR ___ TH ___ OTHER ___ REG ___ FED EX
DATE
___________ CK AMT __________ CK# _____________ BALANCE
______________
PAYABLE
TO _________ SENT TO ___ CONTR ___ TH ___ OTHER ___ REG ___ FED EX
DATE
__________ CK AMT ___________ CK# ____________ BALANCE
______________
PAYABLE
TO _________ SENT TO ___ CONTR ___ TH ___ OTHER ___ REG ___ FED EX
INSPECTIONS: ______%
COMPLETE AS OF _____ ____% COMPLETE AS OF ____
______%
COMPLETE AS OF _____ ___% COMPLETE AS OF _____
******************************************************************************
COMMENTS
__________________________________________________________________
H-37
EXHIBIT
I
FORM
OF
REQUEST FOR RELEASE
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
To:
[Address]
|
Re:
|
Custodial
Agreement, dated as of [_________], among Deutsche Bank National
Trust
Company, as Custodian, Greenwich Capital Acceptance, Inc., as Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities
Administrator.
|
In
connection with the administration of the Mortgage Loans held by you as the
Custodian, we request the release, and acknowledge receipt, of the (Mortgage
File/[specify documents]) for the Mortgage Loan described below, for the
reason
indicated.
Mortgagor=s
Name
Address & Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
C 1. Mortgage
Loan Paid in Full. (The Subservicer of such Mortgage Loan hereby certifies
that
all amounts received in connection therewith have been credited to the account
of the Company.)
C 2. Mortgage
Loan Liquidated By _______________________ (The Subservicer of such Mortgage
Loan hereby certifies that substantially all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received and credited
to the
account of the Company.)
C 3. Mortgage
Loan in Foreclosure
C 4. Other
(explain)
If
box 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous request and receipt on
file
with you, as well as any additional documents in your possession relating
to the
specified Mortgage Loan.
If
box 3
or 4 above is checked, upon our return of all of the above documents to you
as
the Custodian, please acknowledge your receipt by signing in the space indicated
below, and returning this form.
I-1
GMAC
MORTGAGE CORPORATION
as
Subservicer
By:____________________________________
Name:
Title:
Date:___________________________________
Acknowledgment
of Documents returned to the Custodian:
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Custodian
By:____________________________________
Name:
Title:
Date:___________________________________
Acknowledged
and Agreed
MORTGAGEIT,
INC.
as
Company
By:____________________________________
Name:
Title:
Date:___________________________________
I-2
EXHIBIT
J
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
To:
MortgageIT,
Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Credit Officer
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Greenwich
Capital Acceptance, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is made to that certain subservicing agreement, dated as of February 1, 2006
(the “Agreement”), by and between MortgageIT, Inc. and GMAC Mortgage
Corporation, relating to the issuance of the MortgageIT Trust Mortgage
Pass-Through Certificates, Series 2006-1. This certification is delivered
pursuant to Section [__] of the Agreement. Capitalized terms used herein
but not
otherwise defined shall have the meanings set forth in the
Agreement.
[_______],
the undersigned, a duly authorized [_______] of [the Subservicer] [Name of
Reg
AB Subservicer/Subcontractor], does hereby certify that the assessment of
compliance to be delivered by [the Subservicer] [Name of Reg AB Subservicer/Reg
AB Subcontractor] 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”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
ü
|
|
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.
|
ü
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
J-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
ü
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
ü
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
ü
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
ü
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
ü
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
ü
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
ü
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
ü
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
ü
|
|
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.
|
ü
|
|
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.
|
ü
|
|
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.
|
ü
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
ü
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
ü
|
|
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.
|
ü
|
|
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.
|
ü
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
ü
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
ü
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
ü
|
J-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
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).
|
ü
|
|
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.
|
ü
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
ü
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
ü
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
ü
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
ü
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
ü
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
J-3
[NAME
OF
THE SUBSERVICER] [NAME OF REG AB SUBSERVICER/REG AB SUBCONTRACTOR]
Date: _________________________
By:
________________________________
Name:
Title:
J-4
EXHIBIT
K
TRANSACTION
PARTIES
|
Trustee
|
Deutsche
Bank National Trust Company
|
|
Securities
Administrator
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
Master
Servicer
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
Yield
Maintenance Provider
|
The
Royal Bank of Scotland, plc.
|
|
Servicer
|
MortgageIT,
Inc.
|
|
Subservicer
|
GMAC
Mortgage Corporation
|
|
Originator(s)
|
MortgageIT,
Inc.
|
|
Custodian(s)
|
Deutsche
Bank National Trust Company
|
|
Seller
|
MortgageIT,
Inc.
|
K-1
EXHIBIT
L
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Subservicing Agreement dated as of February 1, 2006 (the “Agreement”), by
and between MortgageIT, Inc. (the “Company”) and GMAC Mortgage
Corporation, as subservicer (the “Subservicer”).
|
I,
[identify the certifying individual], the [title] of the Subservicer, certify
to
the ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the “Master Servicer”),
Greenwich Capital Acceptance, Inc., as depositor (the “Depositor”) and the
Company, and their officers, with the knowledge and intent that they will
rely
upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Subservicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Subservicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Subservicer
during 200[ ] that were delivered by the Subservicer to any of the Company,
the
Depositor and the Master Servicer pursuant to the Agreement (collectively,
the
“Subservicing Information”);
(2) Based
on
my knowledge, the Subservicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Subservicing Information;
(3) Based
on
my knowledge, all of the Subservicing Information required to be provided
by the
Subservicer under the Agreement has been provided to the Company, the Depositor
and the Master Servicer;
(4) I
am
responsible for reviewing the activities performed by the Subservicer as
subservicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report,
the Subservicer has fulfilled its obligations under the Agreement in all
material respects; and
(5) The
Compliance Statement required to be delivered by the Subservicer pursuant
to the
Agreement, and the Subservicing Assessment and Attestation Report required
to be
provided by the Subservicer and by any Reg AB Subservicer or Reg AB
Subcontractor pursuant to the Agreement, have been provided to the Company,
the
Depositor and the Master Servicer. Any material instances of noncompliance
described in such reports have been disclosed to the Company, the Depositor
and
the Master Servicer. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
L-1
A
copy of
all assessments, attestations, reports and certifications required to be
delivered by the Subservicer under this Agreement shall be delivered to the
Master Servicer by the date(s) specified herein, and where such documents
are
required to be addressed to any party, such addressees shall include the
Master
Servicer and the Master Servicer shall be entitled to rely on such
documents.
Date: _________________________
By:
________________________________
Name:
Title:
L-2