EXHIBIT 10.1
--------------------------------------------------------------------------------
[o],
as Master Servicer and Securities Administrator
[o]
as Servicer
RENAISSANCE HOME EQUITY LOAN TRUST [o],
as Issuer
and
[o],
as Indenture Trustee
-----------------------------
SERVICING AGREEMENT
Dated as of [o]
-----------------------------
Mortgage Loans
Renaissance Home Equity Loan Trust [o]
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions..............................................................................
Section 1.02. Other Definitional Provisions............................................................
Section 1.03. Interest Calculations....................................................................
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations, Warranties and Covenants Regarding the Servicer and the Master Servicer.
Section 2.02. Existence................................................................................
Section 2.03. Enforcement of Representations and Warranties............................................
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Servicer.............................................................................
Section 3.02. Collection of Certain Mortgage Loan Payments.............................................
Section 3.03. Withdrawals from the Collection Account..................................................
Section 3.04. Maintenance of Hazard Insurance; Property Protection Expenses............................
Section 3.05. Maintenance of Mortgage Impairment Insurance Policy......................................
Section 3.06. Management and Realization Upon Defaulted Mortgage Loans.................................
Section 3.07. Indenture Trustee to Cooperate...........................................................
Section 3.08. Servicing Compensation; Payment of Certain Expenses by Servicer..........................
Section 3.09. Annual Statement as to Compliance........................................................
Section 3.10. Annual Servicing Review..................................................................
Section 3.11. Access to Certain Documentation and Information Regarding the Mortgage Loans.............
Section 3.12. Maintenance of Certain Servicing Insurance Policies......................................
Section 3.13. Reports to the Securities and Exchange Commission........................................
Section 3.14. Compensating Interest....................................................................
Section 3.15. Advances by the Servicer.................................................................
Section 3.16. Optional Purchase of Defaulted Mortgage Loans............................................
Section 3.17. Superior Liens...........................................................................
Section 3.18. Assumption Agreements....................................................................
Section 3.19. Payment of Taxes, Insurance and Other Charges............................................
Section 3.20. Advance Facility.........................................................................
Section 3.21. Covenants of the Servicer Regarding Prepayment Charges...................................
Section 3.22. Non-Solicitation.........................................................................
Section 3.23. Reports to Securities Administrator......................................................
Section 3.24. Reports of Foreclosures and Abandonments of Mortgaged Properties, Returns Relating to
Mortgage Interest Received from Individuals and Returns Relating to Cancellation of
Indebtedness.............................................................................
ARTICLE IV
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 4.01. Master Servicer..........................................................................
Section 4.02. Reserved.................................................................................
Section 4.03. Monitoring of Servicer...................................................................
Section 4.04. Fidelity Bond............................................................................
Section 4.05. Power to Act; Procedures.................................................................
Section 4.06. Due-on-Sale Clauses; Assumption Agreements...............................................
Section 4.07. Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee.....
Section 4.08. Possession of Certain Insurance Policies and Documents...................................
Section 4.09. Compensation for the Master Servicer.....................................................
Section 4.10. Annual Officer's Certificate as to Compliance............................................
Section 4.11. Annual Independent Accountant's Servicing Report.........................................
Section 4.12. Obligation of the Master Servicer in Respect of Prepayment Interest Shortfalls...........
Section 4.13. Monthly Advances by the Master Servicer..................................................
Section 4.14. Merger or Consolidation..................................................................
Section 4.15. Resignation of Master Servicer...........................................................
Section 4.16. Assignment or Delegation of Duties by the Master Servicer................................
Section 4.17. Foreclosure Rights.......................................................................
ARTICLE V
THE MASTER SERVICER AND THE SERVICER
Section 5.01. Liability of the Master Servicer and the Servicer........................................
Section 5.02. Merger or Consolidation of, or Assumption of the Obligations of the Servicer.............
Section 5.03. Limitation on Liability of the Servicer, the Master Servicer and Others..................
Section 5.04. Servicer Not to Resign; Pledge of Servicing Rights.......................................
Section 5.05. Delegation of Duties.....................................................................
Section 5.06. Indemnification of the Trust by the Servicer and the Master Servicer.....................
ARTICLE VI
DEFAULT
Section 6.01. Servicer Events of Default...............................................................
Section 6.02. Appointment of Successor Servicer........................................................
Section 6.03. Master Servicer Events of Default........................................................
Section 6.04. Appointment of Successor Master Servicer.................................................
Section 6.05. Waiver of Defaults.......................................................................
Section 6.06. Notification to Noteholders..............................................................
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment................................................................................
Section 7.02. GOVERNING LAW............................................................................
Section 7.03. Notices..................................................................................
Section 7.04. Assignment...............................................................................
Section 7.05. Severability of Provisions...............................................................
Section 7.06. Third-Party Beneficiaries................................................................
Section 7.07. Counterparts.............................................................................
Section 7.08. Effect of Headings and Table of Contents.................................................
Section 7.09. Termination..............................................................................
Section 7.10. No Petition..............................................................................
Section 7.11. No Recourse..............................................................................
Section 7.12. Indenture Trustee Rights.................................................................
Section 7.13. Waiver of Jury Trial.....................................................................
Section 7.14. No Recourse to Owner Trustee.............................................................
EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Form of Request for Release of Documents
Exhibit C-1 Form of Certification to Be Provided to the Master Servicer by the Securities Administrator
Exhibit C-2 Form of Certification to Be Provided to the Master Servicer by the Servicer
Exhibit D Calculation of Realized Loss/Gain Form 332
Exhibit E Standard File Layout - Scheduled/Scheduled
Exhibit F Standard File Layout - Delinquency Reporting
Exhibit G Form of Mortgage Loan Sale and Contribution Agreement
This Servicing Agreement, dated as of [o], among [o], as Master
Servicer and Securities Administrator (the "Master Servicer" and the "Securities
Administrator"), [o] or its successor, as Servicer (the "Servicer"), Renaissance
Home Equity Loan Trust [o], as Issuer (the "Issuer") and [o], as Indenture
Trustee (the "Indenture Trustee").
W I T N E S S E T H T H A T :
WHEREAS, pursuant to the terms of the Mortgage Loan Sale and
Contribution Agreement, dated [o] (the "Mortgage Loan Sale and Contribution
Agreement"), among Delta Funding Corporation, as Originator, Renaissance REIT
Investment Corp., as Seller and the Depositor, as Purchaser, the Depositor will
acquire the Mortgage Loans;
WHEREAS, the Depositor will create Renaissance Home Equity Loan Trust
[o], a Delaware statutory trust, and will transfer the Mortgage Loans and all of
its rights under the Mortgage Loan Sale and Contribution Agreement to the
Issuer;
WHEREAS, pursuant to the terms of an Amended and Restated Trust
Agreement, dated as of [o] (the "Trust Agreement"), among the Depositor, as
depositor, [o], as owner trustee (the "Owner Trustee") and [o], as certificate
registrar and certificate paying agent, the Depositor will convey the Mortgage
Loans to the Issuer in exchange for the Certificates (as defined below);
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue and transfer to or at the direction of the Depositor, the Trust
Certificates, Series [o] (the "Certificates");
WHEREAS, pursuant to the terms of an Indenture dated as of [o] (the
"Indenture") among the Issuer, the Indenture Trustee and the Securities
Administrator, the Issuer will pledge the Mortgage Loans to the Indenture
Trustee and issue and transfer to or at the direction of the Purchaser the Home
Equity Loan Asset-Backed Notes, Series [o] (collectively, the "Notes"); and
WHEREAS, pursuant to the terms of this Servicing Agreement, the
Servicer will service the Mortgage Loans set forth on the Mortgage Loan Schedule
attached hereto as Exhibit A directly or through one or more Sub-Servicers and
the Master Servicer will provide master servicing functions;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. For all purposes of this Servicing
Agreement, except as otherwise expressly provided herein or unless the
context otherwise requires, capitalized terms not otherwise defined herein
shall have the meanings assigned to such terms in the Definitions contained
in Appendix A to the Indenture which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Servicing Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Servicing Agreement shall refer to this Servicing
Agreement as a whole and not to any particular provision of this Servicing
Agreement; Section and Exhibit references contained in this Servicing Agreement
are references to Sections and Exhibits in or to this Servicing Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(c) The definitions contained in this Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03. INTEREST CALCULATIONS. All calculations of interest
hereunder that are made in respect of the Principal Balance of a Mortgage
Loan shall be made on the basis of a 360-day year consisting of twelve
30-day months.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING
THE SERVICER AND THE MASTER SERVICER.
(a) The Servicer hereby represents, warrants and covenants to the
Issuer and for the benefit of the Indenture Trustee, as pledgee of the Mortgage
Loans, the Securities Administrator, the Master Servicer and the Noteholders
that as of the Closing Date or as of such date specifically provided herein:
(i) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has,
and had at all relevant times, full power to service the Mortgage Loans, to
own its property, to carry on its business as presently conducted and to
enter into and perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Servicer and
the performance by it of and compliance with the terms of this Agreement
will not violate the Servicer's charter or by-laws or constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Servicer is a party or
which may be applicable to the Servicer or any of its assets;
(iii) The Servicer has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement to be
consummated by it, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Servicer, enforceable against it in accordance
with the terms hereof, except as such enforcement may be limited by
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally or the rights of
creditors of insured institutions, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law);
(iv) The Servicer is not in violation of, and the execution and
delivery of this Agreement by the Servicer and the performance by it and
compliance with the terms of this Agreement will not constitute a violation
with respect to, any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental agency having
jurisdiction, which violation would materially and adversely affect the
condition (financial or otherwise) or operations of the Servicer or any of
its properties or materially and adversely affect the performance of any of
its duties hereunder;
(v) There are no actions or proceedings against, or investigations of,
the Servicer pending or, to the knowledge of the Servicer, threatened,
before any court, administrative agency or other tribunal (A) that, if
determined adversely, would prohibit its entering into this Agreement, (B)
seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or (C) that, if determined adversely, would prohibit or
materially and adversely affect the performance by the Servicer of any of
its obligations under, or the validity or enforceability of, this
Agreement;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or compliance by the Servicer with, this
Agreement, or for the consummation of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations and orders,
if any, that have been obtained prior to the Closing Date;
(vii) No Officer's Certificate, statement, report or other document
prepared by the Servicer and furnished or to be furnished by it pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of material fact;
(viii) The Servicer believes that the Servicing Fee Rate provides a
reasonable level of base compensation to the Servicer for servicing the
Mortgage Loans on the terms set forth herein;
(ix) The transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(x) The collection practices used by the Servicer with respect to the
Mortgage Loans have been, in all material respects, legal, proper, prudent
and customary in the non-conforming mortgage servicing business;
(xi) The Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as
such Mortgage Loans are registered with MERS; and
(xii) The Servicer will file its report under Section 404 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with the Commission as provided in its Form 10-K
filed with the Commission in March 2006.
(b) The Master Servicer hereby represents, warrants and covenants to
the Issuer and for the benefit of the Indenture Trustee, as pledgee of the
Mortgage Loans, the Securities Administrator and the Noteholders that as of the
Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States and has, and had at all relevant times, full power to master
service the Mortgage Loans, to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer and the performance by it of and compliance with the terms of this
Agreement will not violate the Master Servicer's charter or by-laws or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the breach or
acceleration of, any material contract, agreement or other instrument to
which the Master Servicer is a party or which may be applicable to the
Master Servicer or any of its assets;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement to be
consummated by it, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against it in
accordance with the terms hereof, except as such enforcement may be limited
by insolvency, reorganization, receivership, moratorium or other similar
laws relating to or affecting the rights of creditors generally or the
rights of creditors of insured institutions, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(iv) The Master Servicer is not in violation of, and the execution and
delivery of this Agreement by the Master Servicer and the performance by it
and compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental agency having
jurisdiction, which violation would materially and adversely affect the
condition (financial or otherwise) or operations of the Master Servicer or
any of its properties or materially and adversely affect the performance of
any of its duties hereunder;
(v) There are no actions or proceedings against, or investigations of,
the Master Servicer pending or, to the knowledge of the Master Servicer,
threatened, before any court, administrative agency or other tribunal (A)
that, if determined adversely, would prohibit its entering into this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) that, if determined
adversely, would prohibit or materially and adversely affect the
performance by the Master Servicer of any of its obligations under, or the
validity or enforceability of, this Agreement;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master Servicer
with, this Agreement, or for the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the
Closing Date; and
(vii) The transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
(c) The representations and warranties set forth in this Section 2.01
shall survive the sale and assignment of the Mortgage Loans to the Trust. Upon
discovery of a breach of any representations and warranties which materially and
adversely affects the interests of the Noteholders, the Person discovering such
breach shall give prompt written notice to the other parties. Within sixty (60)
days of its discovery or its receipt of notice of such breach, or, with the
prior written consent of a Responsible Officer of the Indenture Trustee or the
Securities Administrator, such longer period specified in such consent, the
Master Servicer or the Servicer, as the case may be, shall cure such breach in
all material respects.
Section 2.02. EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is
or becomes, organized under the laws of any other state or of the United
States of America, in which case the Issuer will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction)
and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Servicing Agreement.
Section 2.03. ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES. Upon
discovery by the Seller, the Depositor, the Servicer, the Master Servicer
or a Responsible Officer of the Indenture Trustee or the Securities
Administrator of a breach of any of the representations and warranties made
by the Originator in the Mortgage Loan Sale and Contribution Agreement
(attached hereto as Exhibit G), which materially and adversely affects the
value of, or the interests of the Trust or the Noteholders in, the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the Originator. Within sixty (60) days of its discovery or its
receipt of notice of breach, the Indenture Trustee shall enforce the
obligation of the Originator to use all reasonable efforts to cure such
breach in all material respects or purchase such Mortgage Loan from the
Trust or substitute an Eligible Substitute Mortgage Loan as provided in
Section 3.2 of the Mortgage Loan Sale and Contribution Agreement for such
Mortgage Loan. Any such purchase by the Originator shall be at the Purchase
Price, and in each case shall be accomplished in the manner set forth in
Section 3.1 of the Mortgage Loan Sale and Contribution Agreement. It is
understood and agreed that the obligation of the Originator to cure,
substitute or purchase any Mortgage Loan as to which such a breach has
occurred and is continuing shall constitute the sole remedy against the
Originator respecting such breach available to the Servicer (in its role as
such), the Master Servicer (in its role as such), the Noteholders, the
Securities Administrator or the Indenture Trustee on behalf of Noteholders.
ARTICLE III
ADMINISTRATION AND
SERVICING OF MORTGAGE LOANS
Section 3.01. THE SERVICER.
(a) The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans consistent with the terms of this Agreement. The
Servicer may enter into Subservicing Agreements for any servicing and
administration of Mortgage Loans with any institution which (i) is in compliance
with the laws of each state necessary to enable it to perform its obligations
under such Subservicing Agreement and (ii) meets the requirements of clause (2)
of the definition of an Approved Servicer or is an affiliate of the Servicer.
The Servicer shall give notice to the Master Servicer of the appointment of any
Subservicer. Any such Subservicing Agreement shall be consistent with and not
violate the provisions of this Agreement. The Servicer shall be entitled to
terminate any Subservicing Agreement in accordance with the terms and conditions
of such Subservicing Agreement and either itself directly service the related
Mortgage Loans or enter into a Subservicing Agreement with a successor
subservicer which qualifies hereunder.
(b) Notwithstanding any Subservicing Agreement or any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and primarily liable for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. For purposes of this Agreement, the Servicer shall be deemed
to have received payments on Mortgage Loans when the Subservicer has received
such payments. The Servicer shall be entitled to enter into any agreement with a
Subservicer for indemnification of the Servicer by such Subservicer, and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
(c) Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Servicer alone, and the Indenture Trustee, the Master
Servicer, the Securities Administrator and Noteholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section
3.01(d). The Servicer shall be solely liable for all fees owed by it to any
Subservicer irrespective of whether the Servicer's compensation pursuant to this
Agreement is sufficient to pay such fees.
(d) In the event the Servicer shall for any reason no longer be the
Servicer (including by reason of a Servicer Event of Default), the Successor
Servicer or its designee approved by the Master Servicer shall thereupon assume
all of the rights and obligations of the Servicer under each Subservicing
Agreement that the Servicer may have entered into, unless the Successor Servicer
or designee approved by the Master Servicer elects to terminate any Subservicing
Agreement. Any fee payable in connection with such a termination will be payable
by the outgoing Servicer. If the Successor Servicer does not terminate the
Subservicing Agreements, the Successor Servicer, its designee or the successor
servicer for the Successor Servicer shall be deemed to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to the same extent as if the Subservicing Agreements had
been assigned to the assuming party, except that the Servicer shall not thereby
be relieved of any liability or obligations under the Subservicing Agreements
with regard to events that occurred prior to the date the Servicer ceased to be
the Servicer hereunder. The Servicer, at its expense and without right of
reimbursement therefor, shall, upon the request of the Successor Servicer,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the Subservicing
Agreements to the assuming party.
(e) Consistent with the terms of this Agreement, the Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Servicer's good faith determination such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of the Noteholders, PROVIDED, HOWEVER, that (unless the Mortgagor
is in default with respect to the Mortgage Loan, or such default is, in the
judgment of the Servicer, imminent) the Servicer may not permit any modification
with respect to any Mortgage Loan that would change the Loan Rate, defer or
forgive the payment of any principal or interest (unless in connection with the
liquidation of the related Mortgage Loan) or extend the final maturity date on
the Mortgage Loan. No costs incurred by the Servicer or any Subservicer in
respect of Servicing Advances shall, for the purposes of payments to
Noteholders, be added to the amount owing under the related Mortgage Loan.
Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered to execute and deliver on behalf of the
Indenture Trustee and each Noteholder, all instruments of satisfaction or
cancellation, of partial or full release, or of discharge and all other
comparable instruments with respect to the Mortgage Loans and with respect to
the Mortgaged Properties. If reasonably required by the Servicer, the Indenture
Trustee shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary contained herein, the
Servicer, in servicing and administering the Mortgage Loans, shall employ or
cause to be employed procedures (including collection, foreclosure and REO
Property management procedures) and exercise the same care that it customarily
employs and exercises in servicing and administering mortgage loans for its own
account, in accordance with accepted mortgage servicing practices of prudent
lending institutions servicing mortgage loans similar to the Mortgage Loans and
giving due consideration to the Noteholders' reliance on the Servicer.
(f) Within ninety (90) days after such time as each of the Indenture
Trustee, the Master Servicer and the Securities Administrator receives the
resignation of, or notice of the removal of, the Servicer from its rights and
obligations under this Agreement, and with respect to resignation pursuant to
Section 5.04, after receipt by the Indenture Trustee and the Securities
Administrator of the Opinion of Counsel required pursuant to Section 5.04, the
Successor Servicer shall assume all of the rights and obligations of the
Servicer, subject to Section 6.02; PROVIDED that if the Servicer is removed
pursuant to Section 6.02, the Successor Servicer shall immediately be obligated
to make Monthly Advances and Servicing Advances as required in this Agreement.
The Servicer shall, upon request of the Successor Servicer but at the expense of
the Servicer, deliver to the Successor Servicer all documents and records
relating to the Mortgage Loans and an accounting of amounts collected and held
by the Servicer and otherwise use its best efforts to effect the orderly and
efficient transfer of servicing rights and obligations to the assuming party who
shall be entitled to reimbursement by the Servicer (or, to the extent not paid
by the Servicer, by the Trust prior to payments to Noteholders) for Servicing
Transfer Costs.
(g) The Servicer shall deliver a list of Servicing Officers to the
Indenture Trustee, the Master Servicer and the Securities Administrator on or
before the Closing Date.
(h) Consistent with the terms of this Agreement, the Servicer may
consent to the placing of a lien senior to that of the Mortgage on the related
Mortgaged Property; PROVIDED that such senior lien secures a mortgage loan that
refinances a First Lien and the Combined Loan-to-Value Ratio of the related
Mortgage Loan immediately following the refinancing (based on the outstanding
principal balance of the Mortgage Loan and the original principal balance of
such refinanced mortgage loan) is not greater than the Combined Loan-to-Value
Ratio of such Mortgage Loan as of the related Cut-Off Date.
(i) The Servicer is authorized and empowered by the Indenture Trustee,
on behalf of the Noteholders and the Indenture Trustee, in its own name or in
the name of any Subservicer, when the Servicer or any Subservicer, as the case
may be, believes it appropriate in its best judgment to register any Mortgage
Loan on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Indenture Trustee and the Noteholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Indenture Trustee and its successors and assigns.
Section 3.02. COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.
(a) The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Mortgage Loans and shall, to
the extent such procedures shall be consistent with this Agreement, follow such
collection procedures as it follows with respect to mortgage loans in its
servicing portfolio comparable to the Mortgage Loans. Consistent with the
foregoing, and without limiting the generality of the foregoing, the Servicer
may in its discretion (i) subject to the provisions of Section 3.21 hereof,
waive any prepayment charge, late payment charge or any assumption fees or other
fees which may be collected in the ordinary course of servicing such Mortgage
Loan and (ii) arrange with a Mortgagor a schedule for the payment of interest
due and unpaid; PROVIDED that such arrangement is consistent with the Servicer's
policies with respect to the mortgage loans it owns or services; PROVIDED,
FURTHER, that notwithstanding such arrangement such Mortgage Loans will be
included in the monthly information delivered by the Servicer to the Master
Servicer pursuant to Section 3.23.
(b) The Servicer shall establish and maintain a separate trust account
(the "Collection Account") titled "[o], as Indenture Trustee, in trust for the
registered holders of Renaissance Home Equity Loan Trust [o] Asset-Backed Notes,
Series [o]". The Collection Account shall be an Eligible Account. On the Closing
Date, the Seller shall cause to be deposited in the Collection Account any
amounts representing payments on and any collections in respect of the Mortgage
Loans received after the related Cut-Off Date (other than principal and interest
accrued and due on or prior to [o]) and prior to the Closing Date. The Servicer
shall deposit within two (2) Business Days following receipt thereof the
following payments and collections received or made by it (without duplication):
(i) all payments received after the related Cut-Off Date on account of
principal on the Mortgage Loans (exclusive of payments in respect of
principal on the Mortgage Loans which were due on or prior to the related
Cut-off Date) and all Principal Prepayments and Curtailments collected
after the related Cut-Off Date;
(ii) all payments received after the related Cut-Off Date on account
of interest on the Mortgage Loans (exclusive of payments in respect of
interest on the Mortgage Loans which have accrued and were due on or prior
to the related Cut-Off Date);
(iii) all Net Liquidation Proceeds net of Foreclosure Profits;
(iv) all Insurance Proceeds other than any portion thereof
constituting Net Liquidation Proceeds;
(v) all Released Mortgaged Property Proceeds;
(vi) any amounts payable in connection with the repurchase of any
Mortgage Loan and the amount of any Substitution Adjustment pursuant to
Sections 2.1(f), 3.1 or 3.2 of the Mortgage Loan Sale and Contribution
Agreement and Section 3.16 hereof;
(vii) any amount required to be deposited in the Collection Account
pursuant to Sections 3.02, 3.04, 3.05, 3.06, 3.07, 3.14, 3.15(d), 3.16 and
3.21;
(viii) any Prepayment Charges; and
(ix) the Purchase Price of any Mortgage Loan repurchased by the
Originator pursuant to the Mortgage Loan Sale and Contribution Agreement
and remitted by the Originator to the Servicer;
PROVIDED, HOWEVER, that, with respect to each Due Period, the Servicer shall be
permitted to retain (x) from payments in respect of interest on a Mortgage Loan,
the Servicing Fee and any Ancillary Income for such Mortgage Loan and (y) from
payments from Mortgagors, Liquidation Proceeds, Insurance Proceeds and Released
Mortgaged Property Proceeds, any unreimbursed Servicing Advances and Monthly
Advances or unpaid Servicing Fees related thereto. The foregoing requirements
respecting deposits to the Collection Account are exclusive, it being understood
that, without limiting the generality of the foregoing, the Servicer need not
deposit in the Collection Account amounts representing Servicing Compensation or
amounts received by the Servicer for the accounts of Mortgagors for application
toward the payment of taxes, insurance premiums, assessments and similar items.
The Servicer may cause the institution maintaining the Collection
Account to invest any funds in the Collection Account in Eligible Investments
(including obligations of the Servicer or any of its Affiliates, if such
obligations otherwise qualify as Eligible Investments) pursuant to Section 3.01
of the Indenture. No such investment shall mature later than the Deposit Date.
The Servicer shall deposit in the Collection Account, the amount of any loss
incurred in respect of any Eligible Investment held therein which is in excess
of the income and gain thereon immediately upon realization of such loss,
without any right to reimbursement therefore from its own funds.
Section 3.03. WITHDRAWALS FROM THE COLLECTION ACCOUNT.
The Servicer shall withdraw or cause to be withdrawn funds from the
Collection Account for the following purposes:
(i) before 1:00 p.m. (New York City time) on the related Deposit Date
to withdraw the remaining Available Funds and Prepayment Charges, and, in
each case, remit such funds to the Securities Administrator for deposit to
the Payment Account;
(ii) to reimburse the Servicer for any accrued unpaid Servicing
Compensation which the Servicer would not have been required to deposit in
the Collection Account and for unreimbursed Monthly Advances and Servicing
Advances. The Servicer's right to reimbursement for unpaid Servicing Fees
and unreimbursed Servicing Advances shall be limited to late collections on
the related Mortgage Loan, including Liquidation Proceeds, Released
Mortgaged Property Proceeds, Insurance Proceeds and such other amounts as
may be collected by the Servicer from the related Mortgagor or otherwise
relating to the Mortgage Loan in respect of which such reimbursed amounts
are owed. The Servicer's right to reimbursement for unreimbursed Monthly
Advances shall be limited to late collections on any Mortgage Loan and to
Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance
Proceeds and any purchase or repurchase proceeds on related Mortgage Loans;
(iii) to withdraw any amount received from a Mortgagor that is
recoverable and sought to be recovered as a voidable preference by a
trustee in bankruptcy pursuant to the United States Bankruptcy Code in
accordance with a final, nonappealable order of a court having competent
jurisdiction;
(iv) to withdraw any funds deposited in the Collection Account that
were not required to be deposited therein (such as Servicing Compensation)
or were deposited therein in error and to pay such funds to the appropriate
Person;
(v) to withdraw funds necessary for the conservation and disposition
of REO Property pursuant to Section 3.06 to the extent not advanced by the
Servicer;
(vi) to reimburse the Servicer for Nonrecoverable Advances and any
unpaid Servicing Fees related to a Mortgage Loan secured by a second lien
on the related Mortgaged Property to the extent not recovered pursuant to
clause (ii) above;
(vii) to pay to the Seller collections received in respect of accrued
interest and principal on the Mortgage Loans due on or before the related
Cut-Off Date;
(viii) to pay to the Servicer, the Master Servicer, the Securities
Administrator or the Indenture Trustee the portion of any Purchase Price in
respect of clause (iv) of the definition thereof or of any Substitution
Adjustment in respect of clause (d) of the definition thereof to the extent
paid in respect of amounts incurred by or imposed on the Servicer, the
Master Servicer, the Securities Administrator or the Indenture Trustee, as
the case may be;
(ix) to reimburse the Servicer for expenses incurred by it in
connection with the Mortgage Loans or Notes and reimbursable pursuant to
Section 5.03 hereof; and
(x) to clear and terminate the Collection Account upon the termination
of this Agreement and to pay any amounts remaining therein to the
Certificateholders.
The parties to this Agreement acknowledge that Servicing Advances
shall be reimbursable pursuant to this Section 3.03, and agree that no
reimbursement of a Servicing Advance shall be rejected or disallowed by any
party unless it has been shown that such Servicing Advance was not made in
accordance with the terms of this Agreement.
Section 3.04. MAINTENANCE OF HAZARD INSURANCE; PROPERTY
PROTECTION EXPENSES.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance naming the Servicer as loss payee thereunder providing
extended coverage in an amount which is at least equal to the least of (x) the
maximum insurable value of the improvements securing such Mortgage Loan from
time to time, (y) the combined principal balance owing on such Mortgage Loan and
any mortgage loan senior to such Mortgage Loan and (z) the minimum amount
required to compensate for damage or loss on a replacement cost basis. The
Servicer shall also maintain on property acquired upon foreclosure or by deed in
lieu of foreclosure hazard insurance with extended coverage in an amount which
is at least equal to the least of (i) the maximum insurable value from time to
time of the improvements which are a part of such property, (ii) the combined
principal balance owing on such Mortgage Loan and any mortgage loan senior to
such Mortgage Loan and (iii) the minimum amount required to compensate for
damage or loss on a replacement cost basis at the time of such foreclosure, fire
and/or deed in lieu of foreclosure plus accrued interest and the good-faith
estimate of the Servicer of related Servicing Advances to be incurred in
connection therewith. Amounts collected by the Servicer under any such policies
shall be deposited in the Collection Account to the extent called for by Section
3.02. In cases in which any Mortgaged Property is located in a federally
designated flood area, the hazard insurance to be maintained for the related
Mortgage Loan shall include flood insurance to the extent such flood insurance
is available and the Servicer has determined such insurance to be necessary in
accordance with accepted mortgage loan servicing standards for mortgage loans
similar to the Mortgage Loans. All such flood insurance shall be in amounts
equal to the least of (A) the amount in clause (x) above, (B) the amount in
clause (y) above and (C) the maximum amount of insurance available under the
National Flood Insurance Act of 1968, as amended. The Servicer shall be under no
obligation to require that any Mortgagor maintain earthquake or other additional
insurance and shall be under no obligation itself to maintain any such
additional insurance on property acquired in respect of a Mortgage Loan, other
than pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. The costs and expenses
incurred by the Servicer in maintaining any such insurance shall constitute
Servicing Advances.
Section 3.05. MAINTENANCE OF MORTGAGE IMPAIRMENT INSURANCE
POLICY.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy rating of A:VIII or better in
Best's Key Rating Guide, then, to the extent such policy names the Servicer as
loss payee and provides coverage in an amount equal to the aggregate unpaid
principal balance on the Mortgage Loans without co-insurance, and otherwise
complies with the requirements of Section 3.04, the Servicer shall be deemed
conclusively to have satisfied its obligations with respect to fire and hazard
insurance coverage under Section 3.04, it being understood and agreed that such
blanket policy may contain a deductible clause, in which case the Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 3.04, and there shall have
been a loss which would have been covered by such policy, deposit in the
Collection Account the difference, if any, between the amount that would have
been payable under a policy complying with Section 3.04 and the amount paid
under such blanket policy. Upon the request of the Indenture Trustee or the
Master Servicer, the Servicer shall cause to be delivered to the such party, a
certified true copy of such policy. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Indenture Trustee, and the Noteholders,
claims under any such policy in a timely fashion in accordance with the terms of
such policy.
Section 3.06. MANAGEMENT AND REALIZATION UPON DEFAULTED MORTGAGE
LOANS.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Noteholders solely for the purpose of its prudent and prompt
disposition and sale; PROVIDED that the Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration of
any property unless it shall determine (i) that such restoration and/or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Certificate Account pursuant to
Section 3.03 hereof). The Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; PROVIDED that it shall be
entitled to reimbursement thereof from the proceeds of liquidation of the
related Mortgaged Property, as contemplated in Section 3.03 hereof. The Servicer
shall, either itself or through an agent selected by the Servicer, manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its own
account, and in the same manner that similar property in the same locality as
the REO Property is managed. The Servicer shall attempt to sell the same (and
may temporarily rent the same) on such terms and conditions as the Servicer
deems to be in the best interest of the Noteholders.
The Servicer shall cause to be deposited, no later than two (2)
Business Days after the receipt thereof, in the Collection Account, all revenues
received with respect to the related REO Property and shall retain, or request
the Indenture Trustee to withdraw therefrom, funds necessary for the proper
operation, management and maintenance of the REO Property and the fees of any
managing agent acting on behalf of the Servicer.
The disposition of REO Property shall be carried out by the Servicer
for cash at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interest of the Noteholders and, as soon as practicable
thereafter, the expenses of such sale shall be paid out of the proceeds of such
sale. The cash proceeds of sale of the REO Property shall be promptly deposited
in the Collection Account, net of Foreclosure Profits and of any related
unreimbursed Servicing Advances, accrued and unpaid Servicing Fees and
unreimbursed Monthly Advances payable to the Servicer in accordance with Section
3.03, for payment to the Noteholders in accordance with Section 3.05 of the
Indenture.
The Servicer shall foreclose upon or otherwise comparably convert to
ownership Mortgaged Properties securing such of the Mortgage Loans as come into
and continue in default when no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 3.02.
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 issued to the Indenture Trustee or to its nominee on behalf of
Noteholders.
In the event any Mortgaged Property is acquired as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the Servicer shall (i) dispose of such Mortgaged Property within three (3) years
after the close of the taxable year in which the Mortgaged Property was acquired
(the "grace period") or (ii) prior to the expiration of any extension to such
grace period which is requested on behalf of the Trust by the Servicer (at the
expense of the Trust) more than sixty (60) days prior to the end of the grace
period and granted by the Internal Revenue Service, unless the Trust shall have
received an Opinion of Counsel to the effect that the holding of such Mortgaged
Property subsequent to expiration of the grace period would not cause such
Mortgaged Property to fail to constitute "foreclosure property" as defined in
the Code.
If the Servicer has actual knowledge that a Mortgaged Property which
the Servicer is contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is located within a one-mile radius of any site with environmental
or hazardous waste risks known to the Servicer, the Servicer will notify the
Master Servicer prior to acquiring the Mortgaged Property. Nothing in this
Section 3.06 shall affect the Servicer's right to deem certain advances proposed
to be made Nonrecoverable Advances. For the purpose of this Section 3.06, actual
knowledge of the Servicer means actual knowledge of a Responsible Officer of the
Servicer involved in the servicing of the relevant Mortgage Loan. Actual
knowledge of the Servicer does not include knowledge imputable by virtue of the
availability of or accessibility to information relating to environmental or
hazardous waste sites or the locations thereof.
Section 3.07. INDENTURE TRUSTEE TO COOPERATE.
Upon any Principal Prepayment, the Servicer is authorized to execute,
pursuant to the authorization contained in Section 3.01(e), if the related
Assignment of Mortgage has been recorded as required hereunder, an instrument of
satisfaction regarding the related Mortgage, which instrument of satisfaction
shall be recorded by the Servicer if required by applicable law and be delivered
to the Person entitled thereto. The Servicer is also authorized to cause the
removal from the registration on the MERS System of such Mortgage and to execute
and deliver, on behalf of the Indenture Trustee and the Noteholders or any of
them, any and all instruments of satisfaction or cancellation or of partial or
full release. It is understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or transfer shall be reimbursed
from amounts deposited in the Collection Account. If the Indenture Trustee or
Custodian is holding the Mortgage Files, from time to time and as appropriate
for the servicing or foreclosure of any Mortgage Loan, the Indenture Trustee or
Custodian shall, upon request of the Servicer or the Master Servicer and
delivery to the Custodian of two (2) copies of a Request for Release, one of
which will be returned to the Servicer or the Master Servicer with the Mortgage
File, in the form annexed hereto as Exhibit B, signed by a Servicing Officer or
a Master Servicing Officer or in a mutually agreeable electronic format which
originates from a Servicing Officer or a Master Servicing Officer, release the
related Mortgage File to the Servicer or the Master Servicer, and the Indenture
Trustee or Custodian shall execute such documents, in the forms provided by the
Servicer or the Master Servicer, as shall be necessary for the prosecution of
any such proceedings or the taking of other servicing or master servicing
actions. Such Request for Release shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Indenture Trustee or the Custodian,
as the case may be, when the need therefor by the Servicer or the Master
Servicer no longer exists unless the Mortgage Loan shall be liquidated, in which
case, upon receipt of a certificate of a Servicing Officer or Master Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Indenture Trustee or Custodian to the Servicer or the Master
Servicer.
In addition to the foregoing, the Indenture Trustee or Custodian shall
release to the Seller, any Mortgage File for which the Seller has repurchased or
substituted for the related Mortgage Loan pursuant to the Mortgage Loan Sale and
Contribution Agreement and the Indenture Trustee or the Custodian shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Seller or its designee any
Mortgage Loan released pursuant hereto. If, pursuant to Section 2.1(f) of the
Mortgage Loan Sale and Contribution Agreement, the Seller repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Servicer shall, at the Seller's expense,
either (i) cause MERS to execute and deliver an Assignment of Mortgage in
recordable form to transfer the Mortgage from MERS to the Seller and shall cause
such Mortgage to be removed from registration on the MERS(R) System in
accordance with MERS' rules and regulations or (ii) cause MERS to designate on
the MERS(R) System the Seller as the beneficial holder of such Mortgage Loan.
Section 3.08. SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES
BY SERVICER.
Subject to Section 3.14, the Servicer shall be entitled to retain the
Servicing Fee in accordance with Section 3.02 as compensation for its services
in connection with servicing the Mortgage Loans. Moreover, late payment charges
or other receipts not required to be deposited in the Collection Account,
including, without limitation, Foreclosure Profits, Ancillary Income and,
subject to Section 3.01 of the Indenture, investment income on the Collection
Account shall be additional servicing compensation and retained by the Servicer.
The Servicer shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided herein.
Section 3.09. ANNUAL STATEMENT AS TO COMPLIANCE.
The Master Servicer will deliver to the Indenture Trustee, the NIMS
Insurer and the Depositor not later than March 15th, commencing in 2007, an
Officers' Certificate (an "Annual Statement of Compliance") substantially in the
form of Exhibit [__] attached hereto stating, as to each signatory thereof, that
(i) a review of the activities of the Master Servicer during the preceding
calendar year and of performance under this Agreement or other applicable
servicing agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all of its obligations under this Agreement or other applicable
servicing agreement in all material respects throughout such calendar year, or,
if there has been a failure to fulfill any such obligation in any material
respectx, specifying each such failure known to such officer and the nature and
status of cure provisions thereof. Copies of any such statement shall be
provided by the Indenture Trustee to any Noteholder and to any Person identified
to the Indenture Trustee as a prospective transferee of a Note, upon request at
the expense of the requesting party, provided such statement is delivered by the
Master Servicer to the Indenture Trustee. Such Annual Statement of Compliance
shall contain no restrictions or limitations on its use. In the event that the
Master Servicer has delegated any servicing responsibilities with respect to the
Mortgage Loans serviced by it to a Sub-Servicer, the Master Servicer shall
deliver an officer's certificate of the Sub-Servicer as described above as to
each Sub-Servicer as and when required with respect to the Master Servicer.
If the Master Servicer cannot deliver the Annual Statement of
Compliance by March 15th of such year, the Indenture Trustee, at its sole
option, may permit a cure period for the related Servicer to deliver such Annual
Statement of Compliance, but in no event later than March 30th of such year.
Failure of the Master Servicer to timely comply with this Section 3.09 shall be
deemed an Master Servicer Event of Termination, automatically, without notice
and without any cure period, and the Indenture Trustee may, in addition to
whatever rights the Indenture Trustee may have under this Agreement and at law
or equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Master Servicer for the same. This paragraph shall supercede
any other provision in this Agreement or any other agreement to the contrary.
Section 3.10. ANNUAL SERVICING REVIEW.
On and after January 1, 2006, each of the Master Servicer and the
Indenture Trustee shall service and administer the Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria (as set forth in
Exhibit [__]). Each of the Master Servicer and the Indenture Trustee shall
deliver to the Depositor (and, in the case of the Master Servicer, the Indenture
Trustee) on or before March 15th of each calendar year beginning in 2007, a
report (an "Assessment of Compliance") reasonably satisfactory to the Depositor
regarding the Master Servicer's and Indenture Trustee's assessment of compliance
with the applicable Servicing Criteria during the preceding calendar year as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB, which as of the date hereof, require a report by an authorized
officer of the Master Servicer or the Indenture Trustee that contains the
following:
(a) A statement by such officer of its responsibility for assessing
compliance with the Servicing Criteria applicable to the Master Servicer or the
Indenture Trustee;
(b) A statement by such officer that such officer used the Servicing
Criteria to assess compliance with the Servicing Criteria applicable to the
Master Servicer or the Indenture Trustee;
(c) An assessment by such officer of the Master Servicer's or
Indenture Trustee's compliance with the applicable Servicing Criteria for the
period consisting of the preceding calendar year, including disclosure of any
material instance of noncompliance with respect thereto during such period,
which assessment shall be based on the activities it performs with respect to
asset-backed securities transactions taken as a whole involving the Master
Servicer or the Indenture Trustee, as applicable, that are backed by the same
asset type as the Mortgage Loans;
(d) A statement that a registered public accounting firm has issued an
attestation report on the Master Servicer's or Indenture Trustee's Assessment of
Compliance for the period consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are not
applicable to the Master Servicer or Indenture Trustee, which statement shall be
based on the activities it performs with respect to asset-backed securities
transactions taken as a whole involving the Master Servicer or Indenture
Trustee, that are backed by the same asset type as the Mortgage Loans.
Such report at a minimum shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit [___] hereto
delivered to the Depositor (and, in the case of the Master Servicer, the
Indenture Trustee) concurrently with the execution of this Agreement.
On or before March 15th of each calendar year beginning in 2007, each
of the Master Servicer and the Indenture Trustee shall furnish to the Depositor
(and, in the case of the Master Servicer, the Indenture Trustee) a report (an
"Attestation Report") by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Master Servicer or the
Indenture Trustee, as applicable, as required by Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122(b) of Regulation AB, which Attestation Report must be
made in accordance with standards for attestation reports issued or adopted by
the Public Company Accounting Oversight Board.
Each of the Master Servicer and the Indenture Trustee shall cause any
servicer, and each subcontractor determined by the Master Servicer or the
Trustee, as applicable, to be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, to deliver to the Depositor (and, in
the case of the Master Servicer, the Indenture Trustee) an assessment of
compliance and accountants' attestation.
If the Master Servicer or the Indenture Trustee cannot deliver the
related Assessment of Compliance or Attestation Report by March 15th of such
year, the Depositor, at its sole option, may permit a cure period for the Master
Servicer or the Indenture Trustee, as applicable, to deliver such Assessment of
Compliance or Attestation Report, but in no event later than March 30th of such
year.
Failure of the Master Servicer to timely comply with this Section 3.10
shall be deemed a Master Servicer Event of Termination, automatically, without
notice and without any cure period, and the Indenture Trustee may, in addition
to whatever rights the Indenture Trustee may have under this Agreement and at
law or equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same. This paragraph shall
supercede any other provision in this Agreement or any other agreement to the
contrary.
Section 3.11. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS.
The Servicer shall provide to the Seller, the Indenture Trustee, the
Master Servicer, the Custodian, Noteholders, and Note Owners which are federally
insured savings and loan associations, the Office of Thrift Supervision, the
FDIC and the supervisory agents and examiners of the Office of Thrift
Supervision access to the documentation in the Servicer's possession regarding
the Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision and the FDIC (acting as operator of the SAIF or the BIF), such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Servicer. Nothing in this Section
3.11 shall derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.11 as a result of such obligation shall not constitute a breach of this
Section 3.11. Payments on the Mortgage Loans, including any Principal
Prepayments in full, made in accordance with the related Mortgage File will be
entered into the Master Servicer's set of records no more than two Business Days
after receipt, and allocated to principal or interest as specified in the
related Mortgage File. The Servicer shall not be required to make copies of or
ship documents to any party unless provisions have been made for the
reimbursement of costs thereof; PROVIDED, HOWEVER, that no such reimbursement
shall be required from either the Indenture Trustee, the Master Servicer or the
Custodian. In addition the Seller shall have the right to review the Servicer's
books and records and perform all necessary testing in accordance with the PCAOB
Release No. 2004-001, dated March 9, 2004, as it pertains to the "Use of Service
Organizations."
Section 3.12. MAINTENANCE OF CERTAIN SERVICING INSURANCE
POLICIES.
The Servicer shall during the term of its service as servicer maintain
in force (i) a policy or policies of insurance covering errors and omissions in
the performance of its obligations as servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees or agents. Each such policy or
policies and bond shall, together, comply with the requirements from time to
time of ▇▇▇▇▇▇ ▇▇▇ for persons performing servicing for mortgage loans purchased
by ▇▇▇▇▇▇ Mae. Upon reasonable request of the Depositor, the Servicer shall
provide to the Depositor evidence of such insurance or fidelity bond.
Section 3.13. REPORTS TO THE SECURITIES AND EXCHANGE COMMISSION.
(a) The Indenture Trustee and the Master Servicer shall reasonably
cooperate with the Issuer and the Depositor in connection with the Trust's
satisfying the reporting requirements under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). The Indenture Trustee shall prepare on behalf
of the Trust any Forms 8-K, 10-D and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder, and the Depositor shall sign (or shall cause
another entity acceptable to the Securities and Exchange Commission to sign) and
the Indenture Trustee shall file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such forms on behalf of the
Depositor or the Issuer (or such other entity).
(b) Within 15 days after each Distribution Date, the Indenture Trustee
shall, in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("▇▇▇▇▇"), a Distribution Report
on Form 10-D (which shall, if applicable, provide the information required by
each of the items set forth in Part II thereof) with a copy of the monthly
statement to be furnished by the Indenture Trustee to the Noteholders for such
Distribution Date and detailing all data elements specified in Item 1121(a) of
Regulation AB as an exhibit thereto; provided that the Indenture Trustee shall
have received no later than 10 days prior to the date such Distribution Report
on Form 10-D is required to be filed, the following information:
(A) Notice of any material modifications, extensions or waivers to
Mortgage Loan terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time from the Master
Servicer;
(B) Notice of any new issuance of asset-backed securities backed by
the same asset pool, any pool asset changes, such as Mortgage Loan
substitutions and repurchases, and cash flows available for future
purchases, if applicable, from the Depositor, the Seller or Master
Servicer;
(C) A brief description of any legal proceedings pending, including
proceedings known to be contemplated by governmental authorities, against
the Depositor, the Seller and the Master Servicer or of which any property
of the foregoing is the subject, that is material to Noteholders from each
of the Depositor, the Seller and the Master Servicer if applicable;
(D) The information required by Item 2 of Part II of Form 10-Q
regarding any sale of securities that are either backed by the same asset
pool or are otherwise issued by the issuer, regardless of whether the
transaction was registered under the Securities Act of 1933 during the
period covered by the report from the Depositor;
(E) The information required by Item 3 of Part II of Form 10-Q with
respect to defaults upon the senior securities during the period covered by
the report, from the Depositor;
(F) Any information required to be disclosed in a report on Form 8-K
during the period covered by the report on the Form 10-D, but not reported,
whether or not otherwise required by the Form 10-D from the Depositor and
the Master Servicer; and
(G) Any exhibits to the Form 10-D from the Depositor.
(ii) The Trustee will prepare and file Current Reports on Form 8-K in
respect of the Trust at the direction and expense of the Depositor, provided,
that, the Depositor, the Seller or the Master Servicer shall have timely
notified the Indenture Trustee of an item reportable on a Current Report on Form
8-K and shall have delivered to the Indenture Trustee no later than two Business
Days prior to the filing deadline for such Current Report, all information,
data, and exhibits required to be provided or filed with such Current Report
with respect to:
(A) Any entry into a material definitive agreement, any termination of
a material definitive agreement and any bankruptcy or receivership of the
Depositor, the Seller or the Master Servicer (including any servicer that
does not sign this Agreement and any Sub-Servicer that signs a
Sub-Servicing agreement) from the Depositor, the Seller or the Master
Servicers as applicable;
(B) Any material modification to the rights of Noteholders, amendments
of the articles of incorporation or bylaws or a change of the fiscal year
of any transaction party from each of the Depositor, the Seller or the
Master Servicer as applicable; and
(C) Any Securities Act update provided by the Depositor.
(iii) Prior to January 30th in each year commencing in 2007, the
Indenture Trustee shall, in accordance with industry standards, file a Form 15
Suspension Notice with respect to the Trust Fund, if applicable. Prior to (x)
March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall have
been filed, prior to March 15th of each year thereafter, the Master Servicer
shall provide the Indenture Trustee with an Annual Compliance Statement,
together with a copy of the Assessment of Compliance and Attestation Report to
be delivered by the Master Servicer pursuant to Sections 3.20 and 3.21. Prior to
(x) March 31, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, March 31st of each year thereafter, the Indenture Trustee
shall, subject to subsection (d) below, file a Form 10-K, in substance
conforming to industry standards, with respect to the Trust Fund. Such Form 10-K
shall include the Assessment of Compliance, Attestation Report, Annual
Compliance Statements and other documentation provided by the Master Servicer
pursuant to Sections 3.20 and 3.21 and a certification in the form attached
hereto as Exhibit R-1 (the "Depositor Certification"), which shall be signed by
the senior officer of the Depositor in charge of securitization. The Depositor,
the Seller and the Master Servicers shall provide the Indenture Trustee with the
following information, as applicable, no later than March 15th of each calendar
year prior to the filing deadline for the Form 10-K:
(A) Any exhibits or financial statement schedules required by Item 15
of Form 10-K from each of the Depositor, the Seller and the Master
Servicer;
(B) A description of any legal proceedings pending, including
proceedings known to be contemplated by governmental authorities, against
the Depositor, the Seller and the Master Servicer or of which any property
of the foregoing is the subject, that is material to Noteholders from each
of the Depositor, the Seller and the Master Servicer, if applicable;
(C) A description of any affiliations between the transaction parties
pursuant to Item 1119 of Regulation AB from the Depositor; and
(D) The Assessment of Compliance, Attestation Report, Annual
Compliance Statements and other documentation provided by the Master
Servicer pursuant to Sections 3.20 and 3.21.
(c) The Depositor hereby grants to the Indenture Trustee a limited
power of attorney to execute any Form 8-K and file each such document on behalf
of the Depositor. Such power of attorney shall continue until the earlier of (i)
receipt by the Trustee from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust. The Depositor agrees to
promptly furnish to the Indenture Trustee, from time to time upon request, such
further information, reports and financial statements within its control related
to this Agreement, the Mortgage Loans as the Indenture Trustee reasonably deems
appropriate to prepare and file all necessary reports with the Commission. The
Indenture Trustee shall have no responsibility to file any items other than
those specified in this Section 3.13; provided, however, the Indenture Trustee
will cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Exchange
Act. Copies of all reports filed by the Indenture Trustee under the Exchange Act
shall be sent to the Depositor electronically or at the addressed set forth in
Section 11.05. Fees and expenses incurred by the Indenture Trustee in connection
with this Section 3.13 shall not be reimbursable from the Trust Fund.
(d) The Indenture Trustee shall sign a certification (in the form
attached hereto as Exhibit R-2) for the benefit of the Depositor and its
officers, directors and Affiliates regarding certain aspects of items 1 through
3 of the Depositor Certification (provided, however, that the Indenture Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K). The Indenture Trustee 's certification shall be
delivered to the Depositor by no later than March 18th of each year (or if such
day is not a Business Day, the immediately preceding Business Day) and the
Depositor shall deliver the Depositor Certification to the Indenture Trustee for
filing no later than March 20th of each year (or if such day is not a Business
Day, the immediately preceding Business Day).
The Indenture Trustee shall subject to the provisions of Sections 8.01 and 8.02
hereof, indemnify and hold harmless the Depositor and its officers, directors
and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon third party claims
relating to information included in any Form 10-K provided by the Trustee other
than any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs arising out of third party claims
relating to information contained in the Depositor Certification, the Assessment
of Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Master Servicer pursuant to Sections 3.20 and
3.21. In addition, the Indenture Trustee shall indemnify and hold harmless the
Depositor and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Indenture Trustee's obligations under this Section
3.13 or the Indenture Trustee's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor, then the Indenture Trustee, in
connection with a breach of the Indenture Trustee's obligations under this
Section 3.13 or the Indenture Trustee's negligence, bad faith or willful
misconduct in connection therewith, agrees that it shall contribute to the
amount paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the Indenture
Trustee on the other.
(e) Nothing shall be construed from the foregoing subsections (a), (b)
and (c) to require the Indenture Trustee or any officer, director or Affiliate
thereof to sign any Form 10-K or any certification contained therein.
Furthermore, the inability of the Indenture Trustee to file a Form 10-K as a
result of the lack of required information as set forth in Section 3.13(b) or
required signatures on such Form 10-K or any certification contained therein
shall not be regarded as a breach by the Indenture Trustee of any obligation
under this Agreement.
(f) Upon any filing with the Securities and Exchange Commission, the
Indenture Trustee shall promptly deliver to the Depositor a copy of any executed
report, statement or information.
(g) Prior to January 30 of the first year in which the Indenture
Trustee is able to do so under applicable law, the Indenture Trustee shall file
a Form 15 Suspension Notification with respect to the Trust.
(h) To the extent that, following the Closing Date, the Depositor
certifies that reports and certifications differing from those required under
this Section 3.22(b) comply with the reporting requirements under the Exchange
Act, the Indenture Trustee hereby agrees that it will reasonably cooperate to
amend the provisions of this Section 3.22(b) in order to comply with such
amended reporting requirements and such amendment of this Section 3.22(b). Any
such amendment may result in the reduction of the reports filed by the Depositor
under the Exchange Act. Notwithstanding the foregoing, the Indenture Trustee
shall not be obligated to enter into any amendment pursuant to this Section that
adversely affects its obligations and immunities under this Agreement.
(i) Each of the parties acknowledges and agrees that the purpose of
Sections 3.20, 3.21 and this Section 3.13 of this Agreement is to facilitate
compliance by the Depositor with the provisions of Regulation AB promulgated by
the Commission under the 1934 Act (17 C.F.R. ▇▇.▇▇. 229.1100 - 229.1123), as
such may be amended from time to time and subject to clarification and
interpretive advice as may be issued by the staff of the Commission from time to
time. Therefore, each of the parties agrees that (a) the obligations of the
parties hereunder shall be interpreted in such a manner as to accomplish that
purpose, (b) the parties' obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the requirements of Regulation AB, (c) the parties shall comply with requests
made by the Depositor for delivery of additional or different information as the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB, and (d) no amendment of this Agreement shall be required to
effect any such changes in the parties' obligations as are necessary to
accommodate evolving interpretations of the provisions of Regulation AB.
(j) Each Form 8-K shall be filed by the Indenture Trustee within 15
days after each Payment Date, with a copy of the statement to the Noteholders
for such Payment Date as an exhibit thereto. Prior to March 30th of each year
(or such earlier date as may be required by the Exchange Act and the Rules and
Regulations of the Securities and Exchange Commission), the Indenture Trustee
shall file a Form 10-K, in substance as required by applicable law or applicable
Securities and Exchange Commission staff's interpretations. Such Form 10-K shall
include as exhibits the Master Servicer's annual statement of compliance
described under Section 3.20 and the accountant's report described under Section
3.21, in each case to the extent they have been timely delivered to the
Indenture Trustee. If they are not so timely delivered, the Indenture Trustee
shall file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Indenture Trustee. The Indenture
Trustee shall have no liability with respect to any failure to properly prepare
or file such periodic reports resulting from or relating to the Indenture
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit C-1 (the "Certification"),
which shall be signed by the senior officer of the Depositor in charge of
securitization.
(k) In addition, the Indenture Trustee shall sign a certification (in
the form attached hereto as Exhibit C-2) for the benefit of the Depositor and
its officers, directors and Affiliates regarding certain aspects of the
Certification (provided, however, that the Indenture Trustee shall not undertake
an analysis of the accountant's report attached as an exhibit to the Form 10-K).
The Indenture Trustee's certification shall be delivered to the Depositor by no
later than March 19th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the
Certification to the Indenture Trustee for filing no later than March 20th of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
In addition, the Indenture Trustee shall indemnify and hold harmless
the Depositor and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Indenture Trustee's obligations under this Section
3.13(c) or the Indenture Trustee's negligence, bad faith or willful misconduct
in connection therewith. The Depositor shall indemnify and hold harmless the
Indenture Trustee and its officers, directors and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising out
of or based upon a breach of the Depositor's obligations under this Section 3.13
or the Depositor's negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor or the Indenture Trustee, as
applicable, then the other party, in connection with a breach of its respective
obligations under this Section 3.13 with respect to the Depositor or Section
3.13(c) with respect to the Indenture Trustee or its respective negligence, bad
faith or willful misconduct in connection therewith, agrees that it shall
contribute to the amount paid or payable by the other party as a result of the
losses, claims, damages or liabilities of the other party in such proportion as
is appropriate to reflect the relative fault and the relative benefit of the
Depositor on the one hand and the Indenture Trustee on the other.
(l) Upon any filing with the Securities and Exchange Commission, the
Indenture Trustee shall promptly deliver to the Depositor a copy of any executed
report, statement or information.
(m) Prior to January 30 of the first year in which the Indenture
Trustee is able to do so under applicable law, the Indenture Trustee shall file
a Form 15 Suspension Notification with respect to the Trust.
(n) To the extent that, following the Closing Date, the Depositor
certifies to the Indenture Trustee that reports and certifications differing
from those required under this Section 3.13 comply with the reporting
requirements under the Exchange Act, the Indenture Trustee hereby agrees that it
will reasonably cooperate to amend the provisions of this Section 3.13 (in
accordance with Section 7.01) in order to comply with such amended reporting
requirements and such amendment of this Section 3.13. Any such amendment may
result in the reduction of the reports filed by the Depositor under the Exchange
Act. Notwithstanding the foregoing, the Indenture Trustee shall not be obligated
to enter into any amendment pursuant to this Section that adversely affects its
rights, protections, obligations and immunities under this Servicing Agreement.
Section 3.14. COMPENSATING INTEREST.
Not later than the Determination Date, the Servicer shall deposit to
the Collection Account an amount equal to the lesser of (A) the aggregate of the
Prepayment Interest Shortfalls for the related Payment Date resulting from
Principal Prepayments in full during the related Prepayment Period and (B) an
amount equal to the product of (i) 1/12, (ii) the Servicing Fee Rate and (iii)
the Pool Balance as of the first day of the related Due Period. The Servicer
shall not have the right to reimbursement for any amounts deposited to the
Collection Account pursuant to this Section 3.14.
Section 3.15. ADVANCES BY THE SERVICER.
(a) Not later than 1:00 p.m. New York time on the Deposit Date related
to each Payment Date, the Servicer shall remit to the Securities Administrator
for deposit in the Payment Account an amount to be paid on the related Payment
Date pursuant to Section 3.05 of the Indenture, equal to the Monthly Payment due
on each Mortgage Loan during the related Due Period, but not received as of the
related Determination Date (net of the Servicing Fee) such amount being defined
herein as the "Monthly Advance." With respect to any Balloon Loan that is
delinquent on its maturity date, the Servicer will continue to make Monthly
Advances with respect to such Balloon Loan in an amount equal to one month's
interest on the unpaid principal balance at the applicable Loan Rate (net of the
Servicing Fee) according to the original amortization schedule for such Mortgage
Loan. The obligation to make Monthly Advances with respect to each Mortgage Loan
shall continue until such Mortgage Loan becomes a Liquidated Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, (i) no Servicing
Advance or Monthly Advance shall be required to be made hereunder if the
Servicer determines that such Servicing Advance or Monthly Advance would, if
made, constitute a Nonrecoverable Advance and (ii) no Monthly Advance or
Servicing Advance shall be required with respect to Civil Relief Act Interest
Shortfalls.
(c) All Monthly Advances and Servicing Advances, including any
Nonrecoverable Advances shall be reimbursed on a "first in, first out" ("FIFO")
basis.
(d) So long as the Servicer is [o] or otherwise has long-term debt
rated at least investment grade by one of the Rating Agencies, Monthly Advances
may be made by the Servicer either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records of
the Collection Account that amounts held for future distribution have been, as
permitted by this Section 3.15, used by the Servicer in discharge of any such
Monthly Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of Monthly Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any amounts held for future
distribution and so used shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection Account on or
before the next Deposit Date.
Section 3.16. OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
The Servicer, in its sole discretion, shall have the right to elect
(by written notice sent to the Master Servicer) to purchase for its own account
from the Trust any Mortgage Loan which is ninety (90) days or more delinquent in
the manner and at the price specified in the Mortgage Loan Purchase Agreement.
The Purchase Price for any Mortgage Loan purchased hereunder shall be deposited
in the Collection Account and the Indenture Trustee, upon receipt of such
deposit in the Payment Account by the Securities Administrator, shall release or
cause to be released to the purchaser of such Mortgage Loan the related Mortgage
File and shall execute and deliver such instruments of transfer or assignment
prepared by the purchaser of such Mortgage Loan, in each case without recourse,
as shall be necessary to vest in the purchaser of such Mortgage Loan any
Mortgage Loan released pursuant hereto and the purchaser of such Mortgage Loan
shall succeed to all the Indenture Trustee's right, title and interest in and to
such Mortgage Loan and all security and documents related thereto. Such
assignment shall be an assignment outright and not for security. The purchaser
of such Mortgage Loan shall thereupon own such Mortgage Loan, and all security
and documents, free of any further obligation to the Indenture Trustee or the
Noteholders with respect thereto.
Section 3.17. SUPERIOR LIENS.
The Servicer shall file (or cause to be filed) a request for notice of
any action by a superior lienholder under a First Lien for the protection of the
Indenture Trustee's interest, where permitted by local law and whenever
applicable state law does not require that a junior lienholder be named as a
party defendant in foreclosure proceedings in order to foreclose such junior
lienholder's equity of redemption.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the First Lien,
or has declared or intends to declare a default under the mortgage or the
promissory note secured thereby, or has filed or intends to file an election to
have the Mortgaged Property sold or foreclosed, the Servicer shall take, on
behalf of the Trust, whatever actions are necessary to protect the interests of
the Noteholders and/or to preserve the security of the related Mortgage Loan.
The Servicer shall promptly notify the Indenture Trustee of any such action or
circumstances. The Servicer shall advance the necessary funds to cure the
default or reinstate the superior lien, if such advance is in the best interests
of the Noteholders in accordance with the servicing standards in Section 3.01.
The Servicer shall not make such an advance except to the extent that it
determines in its reasonable good faith judgment that the advance would be
recoverable from Liquidation Proceeds on the related Mortgage Loan and in no
event in an amount that is greater than the Principal Balance of the related
Mortgage Loan. The Servicer shall thereafter take such action as is necessary to
recover the amount so advanced.
Section 3.18. ASSUMPTION AGREEMENTS.
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall, to the extent it has knowledge of such conveyance
or prospective conveyance, exercise its right to accelerate the maturity of the
related Mortgage Loan under any "due-on-sale" clause contained in the related
Mortgage or Mortgage Note; PROVIDED, HOWEVER, that the Servicer shall not
exercise any such right if the "due-on-sale" clause, in the reasonable belief of
the Servicer, is not enforceable under applicable law. In such event, the
Servicer shall enter into an assumption and modification agreement with the
person to whom such property has been or is about to be conveyed, pursuant to
which such person shall become liable under the Mortgage Note and, unless
prohibited by applicable law, the Mortgagor shall remain liable thereon. The
Servicer, in accordance with accepted mortgage loan servicing standards for
mortgage loans similar to the Mortgage Loans, is also authorized to enter into a
substitution of liability whereby such person is substituted as mortgagor and
becomes liable under the Mortgage Note. The Servicer shall notify the Indenture
Trustee and the Master Servicer that any such substitution or assumption
agreement has been completed by forwarding to the Indenture Trustee and the
Master Servicer the original of such substitution or assumption agreement which
original shall be added by the Indenture Trustee or its Custodian to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. In connection with any assumption or substitution agreement
entered into pursuant to this Section 3.18, the Servicer shall not change the
Loan Rate or the Monthly Payment, defer or forgive the payment of principal or
interest, reduce the outstanding principal amount or extend the final maturity
date on such Mortgage Loan.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
Section 3.19. PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting fire and hazard insurance coverage.
With respect to each Mortgage Loan as to which the Servicer maintains
escrow accounts, the Servicer shall maintain accurate records reflecting the
status of ground rents, taxes, assessments, water rates and other charges which
are or may become a lien upon the Mortgaged Property and the status of primary
mortgage guaranty insurance premiums, if any, 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 any escrow account which shall have been estimated and accumulated
by the Servicer in amounts sufficient for such purposes, as allowed under the
terms of the Mortgage. To the extent that a Mortgage does not provide for escrow
payments, the Servicer shall, if it has received notice of a default or
deficiency, monitor such payments to determine if they are made by the
Mortgagor. The Servicer shall maintain a third-party (which may be an Affiliate
of the Servicer) tax monitoring service.
Section 3.20. ADVANCE FACILITY.
(a) The Servicer is hereby authorized to enter in to a financing or
other facility (any such arrangement, an "Advance Facility") under which (1) the
Servicer assigns or pledges to another Person (an "Advancing Person") the
Servicer's rights under this Agreement to be reimbursed for any Monthly Advances
or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all
Monthly Advances and/or Servicing Advances required to be made by the Servicer
pursuant to this Agreement. No consent of the Indenture Trustee, the Master
Servicer, the Securities Administrator, Noteholders or any other party is
required before the Servicer may enter into an Advance Facility; PROVIDED,
HOWEVER, that the consent of the Indenture Trustee, the Master Servicer and the
Securities Administrator shall be required before the Servicer may cause to be
outstanding at one time more than one Advance Facility with respect to Monthly
Advances or more than one Advance Facility with respect to Servicing Advances.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund Monthly Advances and/or Servicing Advances on the
Servicer's behalf, the Servicer shall remain obligated pursuant to this
Agreement to make Monthly Advances and Servicing Advances pursuant to and as
required by this Agreement. If the Servicer enters into an Advance Facility, and
for so long as an Advancing Person remains entitled to receive reimbursement for
any Monthly Advances including Nonrecoverable Advances related thereto ("Monthly
Advance Reimbursement Amounts") and/or Servicing Advances including
Nonrecoverable Advances related thereto ("Servicing Advance Reimbursement
Amounts" and together with Monthly Advance Reimbursement Amounts, "Servicer
Reimbursement Amounts") (in each case to the extent that such type of Servicer
Reimbursement Amount is included in the Advance Facility, then the Servicer
shall identify such Servicer Reimbursement Amounts as received, consistently
with the reimbursement rights set forth in this Agreement, and shall remit such
Servicer Reimbursement Amounts in accordance with the documentation establishing
the Advance Facility to such Advancing Person or to a trustee, agent or
custodian (each, an "Advance Facility Trustee") designated by such Advancing
Person. Notwithstanding the foregoing, if so required pursuant to the terms of
the Advance Facility, the Servicer may direct the Securities Administrator to,
and if so directed the Securities Administrator is hereby authorized to and
shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer
Reimbursement Amounts identified pursuant to the preceding sentence.
Notwithstanding anything to the contrary herein, in no event shall Monthly
Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be
included in "Available Funds" or paid to Noteholders. If the Servicer makes a
remittance to the Securities Administrator of Servicer Reimbursement Amounts
under Section 3.03(i) as described above, the Servicer shall report to the
Master Servicer and the Securities Administrator the portions of such remittance
that consist of Available Funds, Monthly Advance Reimbursement Amounts and
Servicing Advance Reimbursement Amounts, respectively.
(b) If the Servicer enters into an Advance Facility and elects to
remit Servicer Reimbursement Amounts to the Securities Administrator, the
Servicer and the related Advancing Person shall deliver to the Securities
Administrator a written notice and payment instruction (an "Advance Facility
Notice"), providing the Securities Administrator with written payment
instructions as to where to remit Monthly Advance Reimbursement Amounts and/or
Servicing Advance Reimbursement Amounts (each to the extent such type of
Servicer Reimbursement Amount is included within the Advance Facility) on
subsequent Payment Dates. The payment instruction shall require the applicable
Servicer Reimbursement Amounts to be distributed to the Advancing Person or to
an Advance Facility Trustee designated in the Advance Facility Notice. An
Advance Facility Notice may only be terminated by the joint written direction of
the Servicer and the related Advancing Person (and any related Advance Facility
Trustee); PROVIDED, HOWEVER, that the provisions of this Section 3.20 shall
cease to be applicable when all Monthly Advances and Servicing Advances funded
by an Advancing Person, and when all Monthly Advances and Servicing Advances the
rights to be reimbursed for which have been assigned or pledged to an Advancing
Person, have been repaid to the related Advancing Person in full.
(c) Servicer Reimbursement Amounts shall consist solely of amounts in
respect of Monthly Advances and/or Servicing Advances made with respect to the
Mortgage Loans for which the Servicer would be permitted to reimburse itself in
accordance with Section 3.03(ii) or Section 3.03(vi) hereof, assuming the
Servicer had made the related Monthly Advance(s) and/or Servicing Advance(s).
Notwithstanding the foregoing, no Person shall be entitled to reimbursement from
funds held in the Collection Account for future distribution to Noteholders
pursuant to the provisions of Section 3.15. None of the Securities
Administrator, the Master Servicer or the Indenture Trustee shall have any duty
or liability with respect to the calculation of any Servicer Reimbursement
Amount and, if the Servicer has elected to remit Servicer Reimbursement Amounts
to the Securities Administrator, each of the Securities Administrator, the
Master Servicer and the Indenture Trustee shall be entitled to rely without
independent investigation on the Advance Facility Notice and on the Servicer's
report of the amount of Monthly Advance Reimbursement Amounts and Servicing
Advance Reimbursement Amounts that were included in the remittance from the
Servicer to the Securities Administrator pursuant to Section 3.03(i). The
Servicer shall maintain and provide to any Successor Servicer and (upon request)
the Master Servicer a detailed accounting on a loan-by-loan basis as to amounts
advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The
Successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the Successor Servicer shall not be liable for any
errors in such information. None of the Depositor, the Indenture Trustee, the
Master Servicer or the Securities Administrator shall, as a result of the
existence of any Advance Facility, have any additional duty or liability with
respect to the calculation or payment of any Servicer Reimbursement Amount, and
none of the Depositor, the Indenture Trustee, the Master Servicer or the
Securities Administrator shall, as a result of the existence of any Advance
Facility, have any additional responsibility to track or monitor the
administration of such Advance Facility or the payment of Servicer Reimbursement
Amounts to an Advancing Person.
(d) An Advancing Person who receives an assignment or pledge of the
rights to be reimbursed for Monthly Advances and/or Servicing Advances, and/or
whose obligations hereunder are limited to the funding of Monthly Advances
and/or Servicing Advances shall not be required to meet the criteria for
qualification of a Sub-Servicer set forth in Section 3.01 hereof.
(e) Servicer Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a FIFO basis. The Servicer shall provide to the related Advancing Person or
Advance Facility Trustee loan-by-loan information with respect to each Servicer
Reimbursement Amount distributed by the Securities Administrator to such
Advancing Person or Advance Facility Trustee on each Payment Date, to enable the
Advancing Person or Advance Facility Trustee to make the FIFO allocation of each
Servicer Reimbursement Amount with respect to each Mortgage Loan. The Servicer
shall remain entitled to be reimbursed by the Advancing Person or Advance
Facility Trustee for all Monthly Advances and Servicing Advances funded by the
Servicer to the extent the related rights to be reimbursed therefor have not
been assigned or pledged to an Advancing Person.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Master Servicer, the Securities Administrator or the Indenture Trustee
shall be responsible for tracking or monitoring Servicer Reimbursement Amounts
or any Advance Facility, and none of such parties shall be obligated to make any
payment with respect to any Servicer Reimbursement Amount. The Servicer who
enters into an Advance Facility shall indemnify the Indenture Trustee, the
Trust, the Master Servicer, the Securities Administrator and any Successor
Servicer for any loss, liability or damage resulting from any claim by the
related Advancing Person, except (i) in the case of the Indenture Trustee, the
Securities Administrator, the Master Servicer or the Trust, (A) resulting from
any such claim which arises by reason of such party's, as applicable, willful
misfeasance, bad faith or negligence in the performance of its duties hereunder
or by reason of the such party's reckless disregard of its obligations and
duties hereunder or (B) any such claim for which such party receives
indemnification from the Servicer or a Successor Servicer pursuant to Section
5.06(a), or (ii) in the case of a Successor Servicer, which claim arises by
reason of such Successor Servicer's willful misfeasance, bad faith or negligence
in the performance of its duties hereunder or by reason of its reckless
disregard of its obligations and duties hereunder. Notwithstanding the
foregoing, the exclusions set forth in clauses (i) and (ii) above from the
Servicer's obligation to indemnify the Indenture Trustee, the Trust, the Master
Servicer, the Securities Administrator and any Successor Servicer shall not be
applicable, in any case, to the extent the applicable claim, loss, liability or
damage was incurred by reason of the Servicer's willful misfeasance, bad faith
or negligence in the performance of its duties hereunder or by reason of its
reckless disregard of its obligations and duties hereunder, or by reason of a
breach of the Servicer's obligations and duties under this Agreement.
(g) Notwithstanding anything to the contrary in this Section 3.20, the
Servicer shall consult with the Master Servicer in determining the manner in
which any Advance Facility shall affect a Successor Servicer before the Servicer
shall enter into an Advance Facility. Any amendment to this Section 3.20 or to
any other provision of this Agreement that may be necessary or appropriate to
effect the terms of an Advance Facility as described generally in this Section
3.20, including amendments to add provisions relating to a Successor Servicer,
may be entered into by the parties hereto without the consent of any Noteholder,
notwithstanding anything to the contrary in this Agreement, and provided that
such Amendment otherwise complies with the terms hereof. All reasonable costs
and expenses (including attorneys' fees) of each party hereto of any such
amendment shall be borne solely by the Servicer. The parties hereto hereby
acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances
financed by and/or pledged to an Advancing Person under any Advance Facility are
obligations owed to the Servicer payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Monthly Advances and/or
Servicing Advances only to the extent provided herein, and the Indenture Trustee
and the Trust are not, as a result of the existence of any Advance Facility,
obligated or liable to repay any Monthly Advances and/or Servicing Advances
financed by the Advancing Person; (ii) the Servicer will be responsible for
remitting to the Advancing Person the applicable amounts collected by it as
reimbursement for Monthly Advances and/or Servicing Advances funded by the
Advancing Person, subject to the provisions of this Agreement and (iii) the
Indenture Trustee, the Master Servicer and the Securities Administrator shall
not have any responsibility to track or monitor the administration of the
financing arrangement between the Servicer and any Advancing Person.
Section 3.21. COVENANTS OF THE SERVICER REGARDING PREPAYMENT
CHARGES.
(a) The Servicer will not waive any Prepayment Charge or part of a
Prepayment Charge unless (i) such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Charge and related
Mortgage Loan and doing so is standard and customary in servicing similar
Mortgage Loans (including any waiver of a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is related to a default or a reasonably
foreseeable default) and in no event will it 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, or (ii) the collection of the
Prepayment Charge would be in violation of applicable laws or regulations.
(b) Upon discovery by the Servicer, the Master Servicer or a
Responsible Officer of the Indenture Trustee or the Securities Administrator of
a breach of the foregoing, which materially and adversely affects the Holders of
any NIMs Notes, the party discovering such breach shall give prompt written
notice to the other parties. Within 60 days of the earlier of discovery by the
Servicer or the Master Servicer, or receipt of notice by the Servicer or the
Master Servicer, as applicable, of such breach, the Servicer shall cure such
breach in all material respects. If the covenant made by the Servicer is
breached the Servicer must pay into the Collection Account the amount of the
waived Prepayment Charge (less any amount previously collected and paid by the
Servicer into the Collection Account; PROVIDED, HOWEVER, that the Servicer shall
not have an obligation to pay the amount of any uncollected Prepayment Charge if
the failure to collect such amount is the direct result of inaccurate or
incomplete information on the Prepayment Charge Schedule in effect at such
time).
Section 3.22. NON-SOLICITATION.
Neither the Master Servicer nor the Servicer shall take any action or
permit or cause any action to be taken by any of the Master Servicer's or the
Servicer's agents or affiliates, or by any independent contractors on the Master
Servicer's or the Servicer's behalf, to personally, by telephone, mail, e-mail
or other similar methods of communication, solicit any Mortgagor or obligor
under any of the Mortgage Loans to refinance a Mortgage Loan, in whole or in
part, without the prior written consent of the Seller, or any of its successors
or assigns. It is understood and agreed that promotions undertaken by the Master
Servicer or the Servicer which are directed to the general public at large, or
designated segments thereof, including without limitation mass mailings based on
commercially acquired mailing lists, newspaper, radio, telephone and television
advertisements shall not constitute solicitation under this Section 3.22.
Section 3.23. REPORTS TO SECURITIES ADMINISTRATOR.
Not later than 1:00 p.m., New York time, on the 18th calendar day of
each month, or if such 18th day is not a Business Day, the immediately preceding
Business Day, the Servicer shall deliver to the Master Servicer (who shall
deliver to the Securities Administrator) by electronic means reasonably
acceptable to the Master Servicer, a computer file containing the loan level
information set forth in Exhibits D, E and F hereto necessary to permit the
Master Servicer to perform its obligations hereunder and the Securities
Administrator to calculate the information required by clauses (i) through (xxv)
of Section 7.05 of the Indenture as of the end of the preceding Prepayment
Period or Due Period, as applicable, and such other information as the Master
Servicer or the Securities Administrator shall reasonably require.
Section 3.24. REPORTS OF FORECLOSURES AND ABANDONMENTS OF
MORTGAGED PROPERTIES, RETURNS RELATING TO MORTGAGE INTEREST RECEIVED FROM
INDIVIDUALS AND RETURNS RELATING TO CANCELLATION OF INDEBTEDNESS.
The Servicer shall make reports of foreclosures and abandonments of
any Mortgaged Property for each year beginning in 2007. The Servicer shall file
reports relating to each instance occurring during the previous calendar year in
which the Servicer (i) on behalf of the Trust acquires an interest in any
Mortgaged Property through foreclosure or other comparable conversion in full or
partial satisfaction of a Mortgage Loan or (ii) knows or has reason to know that
any Mortgaged Property has been abandoned. The reports from the Servicer shall
be in form and substance sufficient to meet the reporting requirements imposed
by Sections 6050J, 6050H and 6050P of the Code.
ARTICLE IV
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 4.01. MASTER SERVICER.
The Master Servicer shall supervise, monitor and oversee the
obligation of the Servicer to service and administer the Mortgage Loans in
accordance with the terms of the Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with the Servicer as necessary from time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by the Servicer and shall cause the Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by the
Servicer under this Agreement. The Master Servicer shall independently and
separately monitor the Servicer's servicing activities with respect to each
related Mortgage Loan, reconcile the results of such monitoring with such
information provided in the previous sentence on a monthly basis and coordinate
corrective adjustments to the Servicer's and Master Servicer's records. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring with
the actual remittances of the Servicer to the Payment Account pursuant to the
terms hereof based on information provided to the Master Servicer by the
Securities Administrator pursuant to the third paragraph of Section 6.01(j) of
the Indenture.
The Indenture Trustee shall provide access and shall cause the
Custodian to provide access and the Securities Administrator shall provide
access, in each case to the records and documentation in possession of the
Indenture Trustee, the Custodian or the Securities Administrator, as the case
may be, regarding the related Mortgage Loans and REO Property and the servicing
thereof to the Noteholders, the FDIC, and the supervisory agents and examiners
of the FDIC, such access being afforded only upon reasonable prior written
request and during normal business hours at the office of the Indenture Trustee,
the Custodian or the Securities Administrator; PROVIDED, HOWEVER, that, unless
otherwise required by law, none of the Indenture Trustee, the Custodian or the
Securities Administrator shall be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Indenture Trustee shall allow representatives of the above
entities and shall cause the Custodian to allow representatives of the above
entities and the Securities Administrator shall allow representatives of the
above entities, in each case to photocopy any of the records and documentation
and shall provide equipment for that purpose at a charge that covers the
Indenture Trustee's, the Custodian's or the Securities Administrator's, as the
case may be, actual costs.
Section 4.02. RESERVED.
Section 4.03. MONITORING OF SERVICER.
(a) The Master Servicer shall be responsible for monitoring the
compliance by the Servicer with its duties under this Agreement. In the review
of the Servicer's activities, the Master Servicer may rely upon an Officer's
Certificate of the Servicer with regard to the Servicer's compliance with the
terms of this Agreement. In the event that the Master Servicer, in its judgment,
determines that the Servicer should be terminated in accordance with the terms
hereof, or that a notice should be sent pursuant to the terms hereof with
respect to the occurrence of an event that, unless cured, would constitute a
Servicer Event of Default, the Master Servicer shall notify the Servicer, the
Seller and the Indenture Trustee thereof and the Master Servicer shall issue
such notice or take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Indenture Trustee and
the Noteholders, shall enforce the obligations of the Servicer under this
Agreement, and shall, in the event that the Servicer fails to perform its
obligations in accordance with this Agreement, subject to the preceding
paragraph, Article III and Article VI, cause the Indenture Trustee to terminate
the rights and obligations of the Servicer hereunder in accordance with the
provisions of Article VI. Such enforcement, including, without limitation, the
legal prosecution of claims and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans; PROVIDED that the Master Servicer shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer shall have received reasonable indemnity for its costs and
expenses in pursuing such action.
(c) The Master Servicer shall be entitled to be reimbursed by the
Servicer (or from amounts on deposit in the Payment Account if the Servicer does
not timely fulfill its obligations hereunder) for all reasonable out-of-pocket
or third party costs associated with the transfer of servicing from the
predecessor Servicer (or if the predecessor Servicer is the Master Servicer,
from the Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Master Servicer to correct any errors or insufficiencies in the servicing data
or otherwise to enable the Master Servicer to service the Mortgage Loans
properly and effectively, upon presentation of reasonable documentation of such
costs and expenses.
(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in this Agreement.
(e) If the Master Servicer acts as successor Servicer, it will not
assume liability for the representations and warranties of the terminated
Servicer.
(f) The Master Servicer shall not be liable for any acts or omissions
of the Servicer.
Section 4.04. FIDELITY BOND.
The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, employees and other Persons
acting on such Master Servicer's behalf, and covering errors and omissions in
the performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees. Upon reasonable request of the Depositor, the Master Servicer shall
provide to the Depositor evidence of such insurance or fidelity bond.
Section 4.05. POWER TO ACT; PROCEDURES.
The Master Servicer shall master service the Mortgage Loans and shall
have full power and authority to do any and all things that it may deem
necessary or desirable in connection with the master servicing and
administration of the Mortgage Loans, including but not limited to the power and
authority (i) to execute and deliver, on behalf of the Noteholders and the
Indenture Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property. The Indenture
Trustee shall furnish the Master Servicer, upon written request from a Master
Servicing Officer, with any powers of attorney (in form acceptable to the
Indenture Trustee) empowering the Master Servicer or the Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement, and
the Indenture Trustee shall execute and deliver such other documents, as the
Master Servicer or the Servicer may request, to enable the Master Servicer to
master service and administer the Mortgage Loans and carry out its duties
hereunder, in each case in accordance with Accepted Master Servicing Practices
(and the Indenture Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or the Servicer and shall be indemnified by
the Master Servicer or the Servicer, as applicable, for any cost, liability or
expense incurred by the Indenture Trustee in connection with such Person's use
or misuse of any such power of attorney). If the Master Servicer or the
Indenture Trustee has been advised that it is likely that the laws of the state
in which action is to be taken prohibit such action if taken in the name of the
Indenture Trustee or that the Indenture Trustee would be adversely affected
under the "doing business" or tax laws of such state if such action is taken in
its name, the Master Servicer shall join with the Indenture Trustee in the
appointment of a co-trustee pursuant to Section 6.10 of the Indenture. In the
performance of its duties hereunder, the Master Servicer shall be an independent
contractor and shall not, except in those instances where it is taking action in
the name of the Indenture Trustee, be deemed to be the agent of the Indenture
Trustee.
Section 4.06. DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
To the extent Mortgage Loans contain enforceable due-on-sale clauses,
the Master Servicer shall cause the Servicer to enforce such clauses in
accordance with this Agreement.
Section 4.07. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit to the Indenture Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer from time to time as are required by the terms hereof to be
delivered to the Indenture Trustee or Custodian. Any funds received by the
Master Servicer in respect of any Mortgage Loan or which otherwise are collected
by the Master Servicer as Liquidation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan shall be remitted to the Securities Administrator for
deposit in the Payment Account. The Master Servicer shall, and, subject to
Section 3.11, shall cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Indenture Trustee, its agents
and accountants at any time upon reasonable request and during normal business
hours, and to Noteholders that are savings and loan associations, banks or
insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be remitted to the Securities Administrator for deposit in the
Payment Account.
Section 4.08. POSSESSION OF CERTAIN INSURANCE POLICIES AND
DOCUMENTS.
The Indenture Trustee or the applicable Custodian, shall retain
possession and custody of the originals (to the extent available) of any primary
mortgage insurance policies, or certificate of insurance if applicable, and any
Notes of renewal as to the foregoing as may be issued from time to time as
contemplated by this Agreement. Until all amounts payable in respect of the
Notes has been paid in full and the Master Servicer and the Servicer have
otherwise fulfilled their respective obligations under this Agreement, the
Indenture Trustee or the Custodian shall also retain possession and custody of
each Mortgage File in accordance with and subject to the terms and conditions of
this Agreement. The Master Servicer shall promptly deliver or cause to be
delivered to the Indenture Trustee or the Custodian, upon the execution or
receipt thereof the originals of any primary mortgage insurance policies, any
Notes of renewal, and such other documents or instruments related to the
Mortgage Loans that come into the possession of the Master Servicer from time to
time.
Section 4.09. COMPENSATION FOR THE MASTER SERVICER.
As compensation for the activities of the Master Servicer hereunder,
the Master Servicer shall be entitled to the Master Servicing Fee, payable to
the Master Servicer on each Payment Date (with respect to the calendar month
that immediately preceded the month of such Payment Date) from funds in the
Payment Account. The Master Servicing Fee payable to the Master Servicer in
respect of any Payment Date shall be reduced in accordance with Section 4.12.
The Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section 4.10. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer will deliver to the Seller, the Indenture
Trustee, the Securities Administrator and the Rating Agencies, on or before
March 15th of each year, beginning with delivery on March 15, 2007, an Officer's
Certificate certifying that with respect to the period ending December 31st of
the prior year: (i) such Master Servicing Officer has reviewed the activities of
the Master Servicer during the preceding calendar year or portion thereof and
its performance under this Agreement, (ii) to the best of such Master Servicing
Officer's knowledge, based on such review, the Master Servicer has performed and
fulfilled its duties, responsibilities and obligations under this Agreement in
all material respects throughout such year, or, if there has been a default in
the fulfillment of any such duties, responsibilities or obligations, specifying
each such default known to such Master Servicing Officer and the nature and
status thereof, (iii) nothing has come to the attention of such Master Servicing
Officer to lead such Master Servicing Officer to believe that the Master
Servicer has failed to perform any of its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a material default in the performance or fulfillment of
any such duties, responsibilities or obligations, specifying each such default
known to such Master Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any Noteholder upon
request, by the Master Servicer or by the Securities Administrator at the Master
Servicer's expense if the Master Servicer failed to provide such copies (unless
(i) the Master Servicer shall have failed to provide the Securities
Administrator with such statement or (ii) the Securities Administrator shall be
unaware of the Master Servicer's failure to provide such statement).
Section 4.11. ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT.
Not later than March 15th of each year, beginning with the letter due
March 15, 2007, if the Master Servicer has, during the course of any calendar
year, directly serviced any of the Mortgage Loans, then the Master Servicer at
its expense shall cause a nationally recognized firm of independent certified
public accountants to furnish a statement to the Indenture Trustee, the
Securities Administrator, the Rating Agencies and the Seller to the effect that,
with respect to the most recently ended fiscal year, such firm has examined
certain records and documents relating to the Master Servicer's performance of
its servicing obligations under this Agreement and pooling and servicing and
trust agreements in material respects similar to this Agreement and to each
other and that, on the basis of such examination conducted substantially in
compliance with the audit program for mortgages serviced for ▇▇▇▇▇▇▇ Mac or the
Uniform Single Attestation Program for Mortgage Bankers, such firm is of the
opinion that the Master Servicer's activities have been conducted in compliance
with this Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by ▇▇▇▇▇▇▇ Mac requires it
to report. Copies of such statements shall be provided to any Noteholder upon
request by the Master Servicer, or by the Securities Administrator at the
expense of the Master Servicer if the Master Servicer shall fail to provide such
copies. If such report discloses exceptions that are material, the Master
Servicer shall advise the Indenture Trustee and the Securities Administrator
whether such exceptions have been or are susceptible of cure, and will take
prompt action to do so.
Delivery of such reports, information and documents to the Indenture
Trustee is for informational purposes only, and the Indenture Trustee's receipt
of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Master
Servicer's compliance with any of its covenants hereunder (as to which the
Indenture Trustee is entitled to conclusively rely exclusively on an Officers'
Certificate).
Section 4.12. OBLIGATION OF THE MASTER SERVICER IN RESPECT OF
PREPAYMENT INTEREST SHORTFALLS.
In the event that the Servicer fails to perform on any Determination
Date its obligations pursuant to Section 3.14, the Master Servicer shall remit
to the Securities Administrator not later than the Payment Date an amount equal
to the lesser of (i) the aggregate amounts required to be paid by the Servicer
with respect to Prepayment Interest Shortfalls attributable to Principal
Prepayments on the related Mortgage Loans for the related Payment Date, and not
so paid by the Servicer and (ii) the Master Servicing Fee for such Payment Date,
without reimbursement therefor.
Section 4.13. MONTHLY ADVANCES BY THE MASTER SERVICER.
If the Servicer fails to remit any Monthly Advance required to be made
pursuant to Section 3.15, the Master Servicer shall itself make, or shall cause
the Successor Servicer to make, such Advance. If the Master Servicer determines
that a Monthly Advance is required, it shall on the Business Day preceding the
related Payment Date immediately following such Determination Date remit to the
Securities Administrator from its own funds (or funds advanced by the applicable
Servicer) for deposit in the Payment Account immediately available funds in an
amount equal to such Monthly Advance. The Master Servicer shall be entitled to
be reimbursed for all Monthly Advances made by it. Notwithstanding anything to
the contrary herein, in the event the Master Servicer determines in its
reasonable judgment that a Monthly Advance is a Nonrecoverable Advance, the
Master Servicer shall be under no obligation to make such Monthly Advance. If
the Master Servicer determines that a Monthly Advance is a Nonrecoverable
Advance, it shall, on or prior to the related Payment Date, deliver an Officer's
Certificate to the Indenture Trustee and the Securities Administrator to such
effect.
Section 4.14. MERGER OR CONSOLIDATION.
Any Person into which the Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which the Master Servicer shall be a party, or any
Person succeeding to the business of the Master Servicer, shall be the successor
to the Master Servicer hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; PROVIDED, HOWEVER, that the successor or resulting
Person to the Master Servicer or its Affiliate whose primary business is the
servicing of conventional residential mortgage loans shall be a Person that is
an Approved Servicer.
Section 4.15. RESIGNATION OF MASTER SERVICER.
Except as otherwise provided in Sections 4.14 and 4.16 hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless the Master Servicer's duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an independent Opinion of Counsel to such effect delivered to the
Issuer, the Depositor, the Seller and the Indenture Trustee. No such resignation
shall become effective until the Indenture Trustee shall have assumed, or a
Successor Master Servicer shall have been appointed by the Indenture Trustee and
until such successor shall have assumed, the Master Servicer's responsibilities
and obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Indenture Trustee.
If, at any time, the Master Servicer resigns under this Section 4.15,
or transfers or assigns its rights and obligations under Section 4.16, or is
removed as Master Servicer pursuant to Section 6.03, then at such time [o] also
shall resign (and shall be entitled to resign) as Securities Administrator,
Paying Agent and Note Registrar. In such event, the obligations of each such
party shall be assumed by the Indenture Trustee or such Successor Master
Servicer appointed by the Indenture Trustee (subject to the provisions of
Section 6.04).
Section 4.16. ASSIGNMENT OR DELEGATION OF DUTIES BY THE MASTER
SERVICER.
Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder; PROVIDED, HOWEVER, that the Master
Servicer shall have the right with the prior written consent of the Indenture
Trustee and the Seller (which consent shall not be unreasonably withheld), and
upon delivery to the Indenture Trustee and the Seller of a letter from each
Rating Agency to the effect that such action shall not result in a downgrading
of the Notes, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Seller and the Indenture Trustee. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a Successor Master
Servicer, the entire amount of the Master Servicing Fees and other compensation
payable to the Master Servicer pursuant hereto shall thereafter be payable to
such Successor Master Servicer. Such Successor Master Servicer shall also pay
the fees of the Indenture Trustee and the Securities Administrator, as provided
herein.
Section 4.17. FORECLOSURE RIGHTS. (a) For so long as the Seller is the
Majority Certificateholder, the Servicer shall not commence foreclosure
proceedings with respect to a Mortgage Loan unless (i) no later than five
Business Days prior to its commencement of such foreclosure proceedings, it
provides written notice to the Master Servicer and the Majority
Certificateholder of its intention to do so, and (ii) the Majority
Certificateholder consents in writing to such action; PROVIDED, HOWEVER, if the
Majority Certificateholder does not consent in writing within five Business Days
of receipt of written notice from the Servicer of its intention to foreclose,
consent shall be deemed to have been given by the Majority Certificateholder.
(b) In addition, for so long as the Seller is the Majority
Certificateholder, in the event that the Servicer determines not to proceed with
foreclosure proceedings with respect to a Mortgage Loan that becomes 60 days or
more delinquent and the Servicer has determined that it is unable to collect
payments due under such Mortgage Loan, the Servicer shall, prior to taking any
action with respect to such Mortgage Loan, promptly provide the Master Servicer
and the Majority Certificateholder with notice of such determination and a
description of such other action that it intends to take with respect to such
Mortgage Loan; PROVIDED, that the Servicer shall not be permitted to proceed
with any such action unless the Majority Certificateholder consents in writing
to the Servicer taking such action; PROVIDED, HOWEVER, if the Majority
Certificateholder does not consent in writing within five Business Days of
receipt of written notice from the Servicer of its intention to take such
action, consent shall be deemed to have been given by the Seller.
(c) If the Majority Certificateholder does not consent to an action or
contemplated action of the Servicer pursuant to either (a) or (b) above, then
the Majority Certificateholder shall instruct the Servicer to hire, at the
Majority Certificateholder's sole cost and expense, three appraisal firms,
selected by the Servicer in its sole and absolute discretion from the list of
appraisal firms attached as Exhibit H, to compute the fair value of the
Mortgaged Property relating to the related Mortgage Loan utilizing the ▇▇▇▇▇▇
▇▇▇ Form 2055 Exterior-Only Inspection Residential Appraisal Report (each such
appraisal-firm computation, a "Fair Value Price"), in each case (other than as
set forth in (d) below) no later than 30 days from the date of such Majority
Certificateholder objection. If the Servicer shall have received three Fair
Value Prices by the end of such 30-day period, then the Majority
Certificateholder shall, no later than 5 business days after the expiration of
such 30-day period, purchase such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (i) accrued and unpaid interest on
such Mortgage Loan as of such purchase date ("Accrued Interest"), (ii) the
highest of such three Fair Value Prices respectively determined by such
appraisal firms, and shall promptly deliver such amount to the Servicer for
deposit into the Custodian Account and (iii) all unreimbursed servicing
advances. All costs relating to the computation of the related Fair Value Prices
shall be for the account of the Majority Certificateholder and shall be paid by
the Majority Certificateholder at the time of such Mortgage Loan and the related
Mortgaged Property are purchased by the Majority Certificateholder.
(d) Notwithstanding anything herein to the contrary, the Majority
Certificateholder shall not be entitled to any of its rights set forth herein
with respect to a Mortgage Loan following its failure to purchase such Mortgage
Loan and the related Mortgaged Property, at the related purchase price set forth
in this Section 4.17 within the timeframe set forth in this Section 4.17
following the Majority Certificateholder's objection to an action of the
Servicer, and the Servicer shall provide the Master Servicer written notice of
such failure.
(e) Any notice, confirmation, instruction or objection pursuant to
paragraphs (a), (b) and (c) above may be delivered via facsimile or other
written or electronic communication as the parties hereto and the Majority
Certificateholder may agree to from time to time.
(f) For the avoidance of doubt, the Majority Certificateholder's
rights set forth in this Section 4.17 are intended to provide the Majority
Certificateholder, for so long as it owns 100% of the Owner Trust Certificates
(each, as defined in Appendix A of the Indenture) and has not forfeited its
right under this Section 4.17 as set forth in clause (d) above, with the
unilateral right to control foreclosure decisions in respect of delinquent and
defaulted Mortgage Loans, and certain exclusive purchase rights so as to
maximize the recovery value on delinquent and defaulted Mortgage Loans.
To the extent that the Majority Certificateholder purchases any
Mortgage Loan pursuant to this Section 4.17, the Servicer will continue to
service such Mortgage Loan in accordance with this Agreement. The parties
acknowledge that, in such event, the Master Servicer will have no duty or
responsibility to master service any such Mortgage Loan."
ARTICLE V
THE MASTER SERVICER AND THE SERVICER
Section 5.01. LIABILITY OF THE MASTER SERVICER AND THE SERVICER.
The Master Servicer and the Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Master Servicer or Servicer, as the case may be, herein.
Section 5.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER.
Any corporation into which the Servicer may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, or any corporation succeeding to the
business of the Servicer, shall be the successor of the Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED, HOWEVER, that the Successor Servicer shall satisfy all the
requirements of Section 6.02 with respect to the qualifications of a Successor
Servicer.
Section 5.03. LIMITATION ON LIABILITY OF THE SERVICER, THE MASTER
SERVICER AND OTHERS.
Neither the Master Servicer, the Servicer nor any of the directors or
officers or employees or agents of the Master Servicer or the Servicer shall be
under any liability to the Trust or the Noteholders for any action taken or for
refraining from the taking of any action by the Servicer or the Master Servicer
in good faith pursuant to this Agreement, or for errors in judgment; PROVIDED,
HOWEVER, that this provision shall not protect the Master Servicer or the
Servicer or any such Person against any liability which would otherwise be
imposed by reason of its willful misfeasance, bad faith or negligence in the
performance of duties of the Master Servicer or the Servicer or by reason of its
reckless disregard of its obligations and duties of the Master Servicer or the
Servicer hereunder. The Master Servicer or the Servicer and any director or
officer or employee or agent of the Master Servicer or the Servicer may rely in
good faith on any document of any kind PRIMA FACIE properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer
and any director or officer or employee or agent of the Servicer shall be
indemnified by the Trust and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Notes, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement or results from a
breach of representation by the Servicer) and any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder. The Master Servicer shall be indemnified by
the Issuer pursuant to Section 6.07 of the Indenture.
The Master Servicer or the Servicer shall be under no obligation to
appear in, prosecute or defend any legal action that is not incidental to its
duties hereunder and that in its opinion, may involve it in any expense or
liability; PROVIDED, HOWEVER, that the Servicer and the Master Servicer may
undertake any such action which it may deem necessary or desirable in respect of
this Agreement, and the rights and duties of the parties hereto and the
interests of the Noteholders hereunder. In such event, the reasonable legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust. The Servicer's right to indemnity
or reimbursement pursuant to this Section 5.03 shall survive any resignation or
termination of the Servicer pursuant to Section 5.04 or 6.01 with respect to any
losses, expenses, costs or liabilities arising prior to such resignation or
termination (or arising from events that occurred prior to such resignation or
termination). The Master Servicer's right to indemnity or reimbursement pursuant
to this Section 5.03 shall survive any resignation or termination of the Master
Servicer pursuant to Section 4.15 or 6.03 with respect to any losses, expenses,
costs or liabilities arising prior to such resignation or termination (or
arising from events that occurred prior to such resignation or termination).
Section 5.04. SERVICER NOT TO RESIGN; PLEDGE OF SERVICING RIGHTS.
Subject to the provisions of Section 5.02, the Servicer shall not
resign from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it or its subsidiaries or
Affiliates, the other activities of the Servicer so causing such a conflict
being of a type and nature carried on by the Servicer or its subsidiaries or
Affiliates at the date of this Agreement or (ii) upon the proposal by the
Servicer or the Servicing Rights Owner of an Approved Servicer to the Seller,
the Depositor and the Master Servicer in writing; PROVIDED, HOWEVER, that no
such resignation by the Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Master Servicer as Successor Servicer
shall have assumed the Servicer's responsibilities and obligations hereunder or
the Master Servicer shall have designated a successor servicer in accordance
with Section 6.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 6.01 and 6.02 as
obligations that survive the resignation or termination of the Servicer. Any
such determination permitting the resignation of the Servicer pursuant to clause
(i) above shall be evidenced by an Opinion of Counsel to such effect delivered
to the Seller, the Depositor, the Master Servicer, the Securities Administrator
and the Indenture Trustee.
Notwithstanding the foregoing, on or after the Closing Date, the
Servicer or the Servicing Rights Owner may pledge and assign all of its right,
title and interest in, to and under this Agreement to one or more lenders
("Servicing Rights Pledgees") selected by the Servicer or the Servicing Rights
Owner. Provided that no Servicer Event of Default exists, the Indenture Trustee
and the Master Servicer agree that upon delivery to the Indenture Trustee and
the Master Servicer by a Servicing Rights Pledgee of a letter signed by the
Servicer whereunder the Servicer resigns as servicer under this Agreement
pursuant to this Section 5.04, the Master Servicer shall appoint such Servicing
Rights Pledgee or its designee as Successor Servicer, provided that at the time
of such appointment, such Servicing Rights Pledgee or its designee is an
Approved Servicer and that such Servicing Rights Pledgee or its designee agrees
to be subject to the terms of this Agreement.
Section 5.05. DELEGATION OF DUTIES.
In the ordinary course of business, the Servicer at any time may
delegate any of its duties hereunder to any Person, including any of its
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those set forth in Section 3.01. Such delegation shall not relieve
the Servicer of its liabilities and responsibilities with respect to such duties
and shall not constitute a resignation within the meaning of Section 5.04. The
Servicer shall provide the Indenture Trustee, the Master Servicer and the
Securities Administrator with written notice prior to the delegation of any of
its duties to any Person other than any of the Servicer's Affiliates or their
respective successors and assigns.
Section 5.06. INDEMNIFICATION OF THE TRUST BY THE SERVICER AND
THE MASTER SERVICER.
(a) The Servicer shall indemnify and hold harmless the Trust, the
Master Servicer, the Securities Administrator and the Indenture Trustee from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of the Servicer's willful misfeasance, bad faith or negligence in the
performance of its activities in servicing or administering the Mortgage Loans
pursuant to this Agreement, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim related to the Servicer's misfeasance, bad faith or negligence. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this Section 5.06(a) shall survive the termination of this
Agreement.
(b) If the Servicer fails to make when due (without regard to any cure
period) any Monthly Advance or deposit required by it hereunder, the Servicer
shall pay the Securities Administrator for the account of the Securities
Administrator interest at the prime rate from the date on which such payment was
due (without regard to any cure period) to and including the date on which the
Servicer makes such payment.
(c) The Master Servicer shall indemnify and hold harmless the Trust,
the Securities Administrator, the Servicer and the Indenture Trustee from and
against any loss, liability, expense, damage or injury suffered or sustained by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of its activities in master servicing or administering the
Mortgage Loans pursuant to this Agreement, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim related to the Master Servicer's misfeasance, bad
faith or negligence. Any such indemnification shall not be payable from the
assets of the Trust. The provisions of this Section 5.06(c) shall survive the
termination of this Agreement.
(d) If the Master Servicer fails to make when due (without regard to
any cure period) any Monthly Advance or deposit required by it hereunder, the
Master Servicer shall pay the Securities Administrator for the account of the
Securities Administrator interest at the prime rate from the date on which such
payment was due (without regard to any cure period) to and including the date on
which the Master Servicer makes such payment.
ARTICLE VI
DEFAULT
Section 6.01. SERVICER EVENTS OF DEFAULT.
(a) If any one of the following events ("Servicer Events of Default")
shall occur and be continuing:
(i) (A) The failure by the Servicer to make any Monthly Advance which
continues unremedied for a period of one (1) Business Day after it was due;
(B) any other failure by the Servicer to deposit in the Collection Account
or the Payment Account any deposit required to be made under the terms of
this Agreement which continues unremedied for a period of two (2) Business
Days after such deposit was due or (C) the failure by the Servicer to make
any remittances into the Payment Account required pursuant to Section
3.03(i) which continues unremedied for a period of one (1) Business Day
after it was due;
(ii) (A) The failure by the Servicer to make any required Servicing
Advance which failure continues unremedied for a period of sixty (60) days,
or (B) the failure by the Servicer duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Servicer as set forth in this Agreement, which failure materially and
adversely affects the interests of the Noteholders, continues unremedied
for a period of sixty (60) days, after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Servicer by the Master Servicer, the Securities Administrator or the
Indenture Trustee or to the Servicer and the Master Servicer, the
Securities Administrator or the Indenture Trustee, by the Holders of not
less than 25% of the aggregate Note Balance of the Notes; PROVIDED,
HOWEVER, that in the case of a failure that cannot be -------- -------
cured within sixty (60) days, the cure period may be extended if the
Servicer can demonstrate to the reasonable satisfaction of the Master
Servicer, the Securities Administrator, the Indenture Trustee and the
Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a trustee, conservator, receiver or liquidator in any
insolvency, conservatorship, receivership, readjustment of debt, marshaling
of assets and liabilities or similar proceedings, or for the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to
the appointment of a conservator or receiver or liquidator or similar
person in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property, or a decree or order
of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, liquidator or
similar person in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer;
or the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment
of its obligations; or
(v) the Servicer Termination Test is failed; or
(vi) (a) any reduction or withdrawal of the ratings or any shadow
ratings of any Class of Notes attributable principally to the Servicer or
the servicing of the Mortgage Loans or (b) any placement by a Rating Agency
of any Class of Notes on credit watch with negative implications
attributable principally to the Servicer or the servicing of the Mortgage
Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer as a
servicer of subprime mortgage loans by one or more of the Rating Agencies
that maintains a servicer rating system and a rating on the Notes to "below
average" or below; or
(viii) the failure by the Servicer to duly perform, within the
required time period, its obligation to provide the annual statement of
compliance described under Section 3.09, the accountant's report described
under Section 3.10 or the certification described under Section 3.13(e),
which failure continues unremedied for a period of ten days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Master Servicer;
(ix) the failure by the Servicer to provide, within the time frame
specified herein, any required reports or data pertaining to the Mortgage
Loans, which failure continues unremedied for a period of fifteen days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the Master
Servicer; or
(x) the identification under any filing pursuant to Section 404 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 which identifies material weaknesses in
connection with the Servicer's ongoing evaluation of internal controls
which materially and adversely affect the Servicer's ability to perform any
of its duties under this Agreement.
(b) then, and in each and every such case, so long as a Servicer Event
of Default shall not have been remedied, (x) with respect solely to clause
(a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice
or discovery by the Master Servicer or a Responsible Officer of the Indenture
Trustee or of the Securities Administrator of such failure, the Master Servicer
shall give telephonic notice (by no later than 5:00 p.m. New York time on such
Deposit Date) of the failure to make a Monthly Advance to a Servicing Officer of
the Servicer and, to the extent the applicable current contact information has
been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on
the Business Day immediately following the related Deposit Date, upon receipt of
written notice or discovery by the Master Servicer or a Responsible Officer of
the Indenture Trustee or of the Securities Administrator of the continued
failure to make such Monthly Advance, the Master Servicer shall promptly give
telephonic notice of such failure to a Servicing Officer of the Servicer and the
Master Servicer shall direct the Indenture Trustee to terminate all of the
rights and obligations of the Servicer under this Agreement and the Successor
Servicer appointed in accordance with Section 6.02 shall immediately make such
Monthly Advance prior to the distribution of funds on the related Payment Date
and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y)
in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and
shall at the direction of the Holders of not less than 51% of the aggregate Note
Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x)
above, the Indenture Trustee shall, at the direction of the Holders of not less
than 51% of the aggregate Note Balance of the Notes by notice then given in
writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights
Pledgee (to the extent the applicable current contact information has been
provided to the Master Servicer), the Rating Agencies and if given by Holders of
Notes, to the Indenture Trustee, terminate all of the rights and obligations of
the Servicer as servicer under this Agreement. On or after receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes or the Mortgage Loans or
otherwise, shall pass to and be vested in the Successor Servicer pursuant to and
under this Section 6.01; and, without limitation, the Successor Servicer is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to 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 of each Mortgage Loan and related
documents, or otherwise. The Servicer agrees to cooperate with the Successor
Servicer, the Master Servicer, the Securities Administrator and the Indenture
Trustee in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the transfer to the Successor
Servicer for the administration by it of all cash amounts that shall at the time
be held by the predecessor Servicer and to be deposited by it in the Collection
Account, or that have been deposited by the predecessor Servicer in the
Collection Account or thereafter received by the predecessor Servicer with
respect to the Mortgage Loans. All Servicing Transfer Costs and other reasonable
out-of-pocket costs and expenses (including attorneys' fees) incurred in
connection with transferring the Mortgage Files to the Successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to this
Section 6.01 shall be paid by the predecessor Servicer within 90 days of written
demand, itemized in reasonable detail, or, to the extent not paid by the
predecessor Servicer, by the Trust prior to payments to Noteholders (or, if the
predecessor Servicer is the Master Servicer, by the initial Servicer), upon
presentation of reasonable documentation of such costs and expenses. If the
predecessor Servicer is required but fails to pay the amounts specified in the
preceding sentence and such amounts are paid by the Trust, the Securities
Administrator shall, at the direction and expense of the Certificateholders,
take appropriate action to enforce such obligation and recover such amounts on
behalf of such Certificateholders.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall continue to be entitled to receive from the Trust,
payment of all the accrued and unpaid portion of the Servicing Fees to which the
Servicer would have been entitled and reimbursement for all outstanding Monthly
Advances and Servicing Advances, including but not limited to trailing expenses
representing Servicing Advances incurred by the Servicer prior to but invoiced
after the date of termination, which amount shall be remitted by the Successor
Servicer to the terminated Servicer as permitted under Section 3.03 on a
first-in, first-out basis. The Servicer shall continue to be entitled to the
benefits of Section 5.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer
shall act as Servicer under this Agreement, subject to the right of removal set
forth in subsection (b) hereof, for an initial period commencing on the date on
which such Servicer Event of Default occurred and ending on the last day of the
calendar quarter in which such Servicer Event of Default occurred, which period
may be extended by the Master Servicer (an "Extension Notice") for a succeeding
quarterly period ending on December 31, March 31, June 30 and September 30 of
each year (each such quarterly period for which the Servicer shall be designated
to act as Servicer hereunder, a "Servicer Term of Service") until such time as
the Master Servicer, the Securities Administrator and the Indenture Trustee
receives written direction from the Holders of not less than 51% of the
aggregate Note Balance of the Notes not to deliver an Extension Notice, in which
event the Master Servicer shall follow such direction; provided that nothing in
this clause (c) shall prohibit the Master Servicer from removing (or prohibit
Noteholders from directing the Indenture Trustee or the Securities Administrator
to direct the Master Servicer to remove) the Servicer pursuant to clause (b)
above. In the event the Master Servicer fails to deliver an Extension Notice
prior to the end of any Servicer Term of Service, the Servicer shall be
automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the
obligations of Servicer hereunder, the term of the Successor Servicer or such
Person shall not be limited unless and until a Servicer Event of Default
thereafter occurs with respect to such Successor Servicer or other Person. At
such time, the provisions of Section 6.01(c) and (d) shall become applicable to
the then-acting Servicer and the Person then-obligated to succeed such
then-acting Servicer.
Section 6.02. APPOINTMENT OF SUCCESSOR SERVICER.
(a) The Issuer and the Indenture Trustee hereby appoint, and [o],
hereby accepts appointment, on behalf of itself or an affiliate, subject to the
provisions of Section 5.04 hereof, upon receipt by the Servicer of a notice of
termination pursuant to Section 6.01 or upon resignation of the Servicer
pursuant to Section 5.04(i), to be the successor (the "Successor Servicer") in
all respects to the Servicer in its capacity as servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof arising on and after its succession;
PROVIDED, HOWEVER, that, without affecting the immediate termination of the
rights of the Servicer hereunder, it is understood and acknowledged by the
parties hereto that there will be a period of transition not to exceed 100 days
(the "Servicer Transition Period") after receipt by the Servicer of a notice of
termination before the servicing transfer is fully effected.
During the Servicer Transition Period, none of the Successor Servicer,
the Securities Administrator nor the Indenture Trustee shall be responsible for
the lack of information and documents that it cannot reasonably obtain on a
practicable basis under the circumstances.
As compensation therefor, the Successor Servicer shall be entitled to
such compensation as the Servicer would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the above, if the
Successor Servicer is unwilling or legally unable to act as successor servicer,
the Master Servicer may appoint or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution, bank or other
mortgage loan or home equity loan servicer that is an Approved Servicer as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder; PROVIDED that
the appointment of any such Successor Servicer will not result in the
qualification, reduction or withdrawal of the ratings assigned to the Offered
Notes by the Rating Agencies. Pending appointment of a successor to the Servicer
hereunder, unless the Successor Servicer is prohibited by law from so acting,
the Successor Servicer shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on the Mortgage Loans in an amount equal
to the compensation which the Servicer would otherwise have received pursuant to
Section 3.08 (or such lesser compensation as the Master Servicer and such
successor shall agree). The appointment of a Successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer to pay any deductible under an
insurance policy pursuant to Section 3.05 or to indemnify the Indenture Trustee,
the Master Servicer and the Securities Administrator pursuant to Section 5.06,
nor shall any Successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Indenture Trustee, the Master Servicer, the Securities
Administrator or a Successor Servicer shall have no responsibility or obligation
(i) to repurchase or substitute for any of the Mortgage Loans or (ii) for any
acts or omissions of a predecessor Servicer during the Servicer Transition
Period. The Indenture Trustee, the Master Servicer, the Securities Administrator
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
Notwithstanding the foregoing, if a Servicer Event of Default occurs,
the Servicer, the Servicing Rights Owner or the Servicing Rights Pledgee shall
have a period of up to twenty (20) days after receipt of a notice of termination
to appoint an Approved Servicer as Successor Servicer. Such right of appointment
shall terminate immediately, however, if such terminated Servicer, the Servicing
Rights Owner or the Servicing Rights Pledgee fails to make any required Monthly
Advance, Servicing Advance or any other deposit required to be made pursuant to
the terms of this Agreement, as and when required by this Agreement (taking into
account any applicable cure period). All costs and expenses associated with the
appointment, whether or not consummated, and the subsequent transfer of
servicing (which must be completed within 100 days after receipt by the Servicer
of a notice of termination) are required to be paid by the terminated Servicer,
the Servicing Rights Owner or the Servicing Rights Pledgee out of the proceeds
of sale or otherwise. Any proceeds remaining after such costs and expenses have
been paid for by the terminated Servicer, shall be the property of the
terminated Servicer, the Servicing Rights Owner or the Servicing Rights Pledgee,
as applicable.
(b) Any successor, including the Successor Servicer, to the Servicer
as servicer shall during the term of its service as servicer (i) continue to
service and administer the Mortgage Loans for the benefit of Noteholders in
accordance with all of the terms and provisions hereof and (ii) maintain in
force a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and a fidelity bond in
respect of its officers, employees and agents to the same extent as the Servicer
is so required pursuant to Section 3.12.
(c) In connection with the termination or resignation of the Servicer
hereunder, either (i) the Successor Servicer, including the Master Servicer if
the Master Servicer is acting as Successor Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Servicer, at its sole expense, shall cooperate with the Successor
Servicer either (x) in causing MERS to execute and deliver an assignment of
Mortgage in recordable form to transfer the Mortgage from MERS to the Indenture
Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
Successor Servicer or (y) in causing MERS to designate on the MERS(R) System the
Successor Servicer as the servicer of such Mortgage Loan (at the cost and
expense of the Successor Servicer to the extent such costs relate to the
qualification of such Successor Servicer as a member of MERS, otherwise at the
cost and expense of the predecessor Servicer). The predecessor Servicer shall
file or cause to be filed any such assignment in the appropriate recording
office. The Successor Servicer shall cause such assignment to be delivered to
the Indenture Trustee promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Section 6.03. MASTER SERVICER EVENTS OF DEFAULT.
(a) If any one of the following events ("Master Servicer Events of
Default") shall occur and be continuing:
(i) Any failure by the Master Servicer to furnish the Securities
Administrator the Mortgage Loan data sufficient to prepare the reports
described in Section 7.05 of the Indenture which continues unremedied for a
period of one Business Day after the date upon which written notice of such
failure shall have been given to such Master Servicer by the Indenture
Trustee or the Securities Administrator or to such Master Servicer, the
Securities Administrator and the Indenture Trustee by the Holders of not
less than 25% of the aggregate Note Balance of the Notes; or
(ii) Any failure on the part of the Master Servicer duly to observe or
perform in any material respect any other of the covenants or agreements
(other than those referred to in clauses (viii) and (ix) below) on the part
of the Master Servicer contained in this Agreement which continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer by the Indenture Trustee or the Securities
Administrator, or to the Master Servicer, the Securities Administrator and
the Indenture Trustee by the Holders of not less than 25% of the aggregate
Note Balance of the Notes; or
(iii) A decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days or any Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the Notes because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to the Master Servicer or of or relating
to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
Successor Master Servicer as specified in Section 6.04 hereof; or
(vii) If a representation or warranty set forth in Section 2.01(b)
hereof shall prove to be incorrect as of the time made in any respect that
materially and adversely affects the interests of the Noteholders, and the
circumstance or condition in respect of which such representation or
warranty was incorrect shall not have been eliminated or cured within 30
days after the date on which written notice of such incorrect
representation or warranty shall have been given to the Master Servicer by
the Indenture Trustee or the Securities Administrator, or to the Master
Servicer, the Securities Administrator and the Indenture Trustee by the
Holders of not less than 25% of the aggregate Note Balance of the Notes; or
(viii) A sale or pledge of any of the rights of the Master Servicer
hereunder or an assignment of this Agreement by the Master Servicer or a
delegation of the rights or duties of the Master Servicer hereunder shall
have occurred in any manner not otherwise permitted hereunder and without
the prior written consent of the Indenture Trustee and the Holders of not
less than 50% of the aggregate Note Balance of the Notes; or
(ix) After receipt of notice from the Indenture Trustee, any failure
of the Master Servicer to make any Monthly Advances when such Monthly
Advances are due, as required to be made hereunder.
(b) then, and in each and every such case, so long as a Master
Servicer Event of Default shall not have been remedied, (x) with respect solely
to clause (ix) above, upon receipt of written notice or discovery by a
Responsible Officer of the Indenture Trustee or of the Securities Administrator
of such failure, the Indenture Trustee shall give immediate telephonic notice of
such failure to a Master Servicing Officer of the Master Servicer and the
Indenture Trustee shall terminate all of the rights and obligations of the
Master Servicer under this Agreement and the Successor Master Servicer appointed
in accordance with Section 6.02 shall immediately make such Monthly Advance
prior to the payment of funds on the related Payment Date and assume, pursuant
to Section 6.04, the duties of a Successor Servicer and (y) in the case of
clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) above, the Indenture
Trustee shall, at the direction of the Holders of not less than 51% of the
aggregate Note Balance of the Notes by notice then given in writing to the
Master Servicer (and to the Indenture Trustee if given by Holders of Notes),
terminate all of the rights and obligations of the Master Servicer as servicer
under this Agreement. Any such notice to the Master Servicer shall also be given
to each Rating Agency and the Seller. On or after receipt by the Master Servicer
of such written notice, all authority and power of the Master Servicer under
this Agreement, whether with respect to the Notes or the Mortgage Loans or
otherwise, shall pass to and be vested in the Successor Master Servicer pursuant
to and under this Section 6.03; and, without limitation, the Successor Master
Servicer is hereby authorized and empowered to execute and deliver, on behalf of
the Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to 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 of each Mortgage Loan and related
documents, or otherwise. The Master Servicer agrees to cooperate with the
Successor Master Servicer, the Servicer, the Securities Administrator and the
Indenture Trustee in effecting the termination of the responsibilities and
rights of the Master Servicer hereunder. All Servicing Transfer Costs and other
reasonable out-of-pocket costs and expenses (including attorneys' fees) incurred
in connection with transferring any Mortgage Files to the Successor Master
Servicer and amending this Agreement to reflect such succession as Master
Servicer pursuant to this Section 6.03 shall be paid by the predecessor Master
Servicer within 90 days of written demand, itemized in reasonable detail, or, to
the extent not paid by the predecessor Master Servicer, by the Trust prior to
payments to Noteholders (or, if the predecessor Master Servicer is the Indenture
Trustee, by the initial Master Servicer), upon presentation of reasonable
documentation of such costs and expenses. If the predecessor Master Servicer is
required but fails to pay the amounts specified in the preceding sentence and
such amounts are paid by the Trust, the Securities Administrator shall, at the
direction and expense of the Certificateholders, take appropriate action to
enforce such obligation and recover such amounts on behalf of such
Certificateholders.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall continue to be entitled to receive
from the Trust, payment of all the accrued and unpaid portion of the Master
Servicing Fees to which the Master Servicer would have been entitled and
reimbursement for all outstanding Monthly Advances which amount shall be
remitted by the Successor Master Servicer to the terminated Master Servicer as
permitted under Section 3.01 of the Indenture on a first-in, first-out basis.
The Master Servicer shall continue to be entitled to the benefits of Section
5.03, notwithstanding any termination hereunder, with respect to events
occurring prior to such termination.
(c) Upon the occurrence of a Master Servicer Event of Default, the
Indenture Trustee shall act as Master Servicer under this Agreement, subject to
the right of removal set forth in subsection (b) hereof, for an initial period
commencing on the date on which such Master Servicer Event of Default occurred
and ending on the last day of the calendar quarter in which such Master Servicer
Event of Default occurred, which period shall be extended by the Indenture
Trustee (an "Extension Notice") for a succeeding quarterly period ending on
December 31, March 31, June 30 and September 30 of each year (each such
quarterly period for which the Master Servicer shall be designated to act as
Master Servicer hereunder, a "Master Servicer Term of Service") until such time
as the Securities Administrator and the Indenture Trustee receives written
direction from the Holders of not less than 51% of the aggregate Note Balance of
the Notes not to deliver an Extension Notice, in which event the Indenture
Trustee shall follow such direction; provided that nothing in this clause (c)
shall prohibit the Indenture Trustee from removing (or prohibit Noteholders from
directing the Indenture Trustee or the Securities Administrator to direct the
Indenture Trustee to remove) the Master Servicer pursuant to clause (b) above.
In the event the Indenture Trustee fails to deliver an Extension Notice prior to
the end of any Master Servicer Term of Service, the Master Servicer shall be
automatically terminated.
(d) If the Successor Master Servicer or another Person succeeds to the
obligations of Master Servicer hereunder, the term of the Successor Master
Servicer or such Person shall not be limited unless and until a Master Servicer
Event of Default thereafter occurs with respect to such Successor Master
Servicer or other Person. At such time, the provisions of Section 6.03(c) and
(d) shall become applicable to the then-acting Master Servicer and the Person
then-obligated to succeed such then-acting Master Servicer.
Section 6.04. APPOINTMENT OF SUCCESSOR MASTER SERVICER.
(a) The Issuer and the Indenture Trustee hereby appoint, and [o],
hereby accepts appointment, on behalf of itself or an affiliate, subject to the
provisions of Sections 4.15 and 6.04(d) hereof, upon receipt by the Master
Servicer of a notice of termination pursuant to Section 6.03 or upon resignation
of the Master Servicer pursuant to Section 4.15, to be the successor (the
"Successor Master Servicer") in all respects to the Master Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof arising on and after its succession; PROVIDED, HOWEVER, that,
without affecting the immediate termination of the rights of the Master Servicer
hereunder, it is understood and acknowledged by the parties hereto that there
will be a period of transition not to exceed 90 days (the "Master Servicer
Transition Period") before the master servicing transfer is fully effected.
During the Master Servicer Transition Period, neither the Successor
Master Servicer, the Securities Administrator nor the Indenture Trustee shall be
responsible for the lack of information and documents that it cannot reasonably
obtain on a practicable basis under the circumstances.
As compensation therefor, the Successor Master Servicer shall be
entitled to such compensation as the Master Servicer would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding the
above, if the Successor Master Servicer is legally unable to act as successor
servicer, the Indenture Trustee may appoint or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
bank or other mortgage loan or home equity loan servicer that is an Approved
Servicer (defined for this purpose by (i) striking the words "the Master
Servicer" in clause 1 of the definition thereof and (ii) striking clause 2(a) in
the definition thereof) as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder; PROVIDED that the appointment of any such
Successor Master Servicer will not result in the qualification, reduction or
withdrawal of the ratings assigned to the Offered Notes by the Rating Agencies.
Pending appointment of a successor to the Master Servicer hereunder, unless the
Successor Master Servicer is prohibited by law from so acting, the Successor
Master Servicer shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the successor shall be entitled
to receive compensation out of payments on the Mortgage Loans in an amount equal
to the compensation which the Master Servicer would otherwise have received
pursuant to Section 4.09 (or such lesser compensation as the Indenture Trustee
and such successor shall agree). The appointment of a Successor Master Servicer
shall not affect any liability of the predecessor Master Servicer which may have
arisen under this Agreement prior to its termination as Master Servicer to
indemnify the Indenture Trustee, the Servicer and the Securities Administrator
pursuant to Section 5.06, nor shall any Successor Master Servicer be liable for
any acts or omissions of the predecessor Master Servicer or for any breach by
such Master Servicer of any of its representations or warranties contained
herein or in any related document or agreement. During the Master Servicer
Transition Period, the Indenture Trustee, the Securities Administrator or a
Successor Master Servicer shall have no responsibility or obligation (i) to
repurchase or substitute for any of the Mortgage Loans or (ii) for any acts or
omissions of a predecessor Master Servicer. The Indenture Trustee, the
Securities Administrator and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
(b) Any successor, including the Successor Master Servicer, to the
Master Servicer as servicer shall during the term of its service as master
servicer (i) continue to master service and administer the Mortgage Loans for
the benefit of Noteholders and (ii) maintain in force a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and a fidelity bond in respect of its officers,
employees and agents to the same extent as the Master Servicer is so required
pursuant to Section 4.04.
(c) In connection with the termination or resignation of the Master
Servicer hereunder, the Successor Master Servicer, including the Indenture
Trustee if the Indenture Trustee is acting as Successor Master Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Mortgage Loans that are registered with
MERS.
(d) Notwithstanding the above, the Indenture Trustee may, if it shall
be unwilling to continue to so act, or shall, if it is unable to so act,
petition a court of competent jurisdiction to appoint, or appoint on its own
behalf any established housing and home finance institution servicer, master
servicer, servicing or mortgage servicing institution having a net worth of not
less than $25,000,000 and meeting such other standards for a successor master
servicer as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the responsibilities, duties or liabilities
of a master servicer, like the Master Servicer.
Section 6.05. WAIVER OF DEFAULTS.
The Holders of not less than 51% of the aggregate Note Balance of the
Notes may, on behalf of all Noteholders, waive any events permitting removal of
the Servicer as servicer or of the Master Servicer as master servicer pursuant
to this Article VI, PROVIDED, HOWEVER, that the Holders of not less than 51% of
the aggregate Note Balance of the Notes may not waive a default in making a
required payment on a Note without the consent of the Holder of such Note. Upon
any waiver of a past default, such default shall cease to exist, and any
Servicer 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 thereto except to the
extent expressly so waived. Notice of any such waiver shall be given by the
Securities Administrator to the Rating Agencies.
Section 6.06. NOTIFICATION TO NOTEHOLDERS.
Upon any termination or appointment of a successor to the Servicer
pursuant to this Article VI or Section 5.04, the Securities Administrator shall
give prompt written notice thereof to the Noteholders at their respective
addresses appearing in the Note Register and to each Rating Agency.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. AMENDMENT.
(a) This Agreement may be amended from time to time by the Issuer, the
Servicer, the Master Servicer, the Securities Administrator and the Indenture
Trustee subject, in the case of any amendment or modification which affects any
right, benefit, duty or obligation of the Custodian, to the consent of the
Custodian, in each case without the consent of any of the Noteholders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provisions herein,
(iii) to add to the duties of the Servicer or of the Master Servicer, (iv) to
add any other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement
or (v) to provide for gross deposits to the Collection Account by the Servicer;
PROVIDED, HOWEVER, that as evidenced by an Opinion of Counsel (at the expense of
the requesting party) in each case such action shall not adversely affect in any
material respect the interest of any Noteholder; and PROVIDED, FURTHER, that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Noteholders and no Opinion of Counsel to that effect shall be
required if the Person requesting the amendment obtains a letter from each
Rating Agency stating that the amendment would not result in the downgrading or
withdrawal of the respective ratings then assigned to the Notes.
(b) This Agreement also may be amended from time to time by the
Issuer, the Servicer, the Master Servicer, the Securities Administrator and the
Indenture Trustee, subject, in the case of any amendment or modification which
affects any right, benefit, duty or obligation of the Custodian, to the consent
of the Custodian, with the consent of the Holders of not less than 51% of the
Note Balance of the Class of Notes affected by such amendment (or in the case of
an amendment which affects all classes, the consent of the Holders of not less
than 51% of the Note Balance of the Notes), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders;
PROVIDED, HOWEVER, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments on the Notes which are required to
be made on any Note without the consent of the Holder of such Note or (ii)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the Holders of all Notes then outstanding.
(c) Prior to the execution of any such amendment, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Rating Agency. In addition, promptly after the execution of
any such amendment made with the consent of the Noteholders, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Noteholder.
(d) It shall not be necessary for the consent of Noteholders under
this Section 7.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Securities Administrator may prescribe.
Notwithstanding the permissive language in Section 7.01(a) and
7.01(b), upon satisfaction of the conditions in Section 7.01(a) or 7.01(b) as
applicable, the Indenture Trustee and the Securities Administrator shall execute
and deliver the applicable amendment; PROVIDED, HOWEVER, that the Indenture
Trustee and the Securities Administrator shall not be required to execute any
amendment which, based on an Opinion of Counsel, materially and adversely
affects the rights, duties or immunities of the Indenture Trustee or of the
Securities Administrator hereunder. Prior to the execution of any amendment to
this Agreement, each of the Indenture Trustee and the Securities Administrator
shall be entitled to receive and rely upon a Opinion of Counsel addressed to it
stating that the execution of such amendment is authorized or permitted by this
Agreement.
Section 7.02. GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 7.03. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if and when delivered to:
(a) in the case of the Servicer:
[o]
(b) in the case of the Master Servicer:
[o]
(c) in the case of Rating Agencies:
[o]
(d) in the case of the Owner Trustee, the Corporate Trust Office:
[o]
(e) in the case of the Issuer, to Renaissance Home Equity Loan Trust
[o]:
c/o Renaissance Mortgage Acceptance Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(f) in the case of the Indenture Trustee or the Securities
Administrator, to the respective Corporate Trust Office;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Noteholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to deliver such notice
or document to any Rating Agency.
Section 7.04. ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 4.16, 5.02, 5.04
and 5.05 (or 3.01), this Agreement may not be assigned by the Master
Servicer or the Servicer without the prior written consent of the Holders
of not less than 66% of the aggregate Note Balance of the Notes.
Notwithstanding the foregoing, the Servicer and the Master Servicer may
assign its rights to reimbursement for Monthly Advances, Servicing Advances
and Nonrecoverable Advances, as applicable, without Noteholder consent.
Section 7.05. SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Servicing Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Servicing
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Servicing Agreement or of the Notes or the rights
of the Noteholders thereof.
Section 7.06. THIRD-PARTY BENEFICIARIES. This Servicing Agreement
will inure to the benefit of and be binding upon the parties hereto, the
Noteholders, the Owner Trustee, the Indenture Trustee and their respective
successors and permitted assigns. Except as otherwise provided in this
Servicing Agreement, no other Person will have any right or obligation
hereunder. The Indenture Trustee shall have the right to exercise all
rights of the Issuer under this Servicing Agreement.
Section 7.07. COUNTERPARTS. This instrument may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 7.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 7.09. TERMINATION. The respective obligations and
responsibilities of the Master Servicer and the Issuer created hereby shall
terminate upon the satisfaction and discharge of the Indenture pursuant to
Section 4.10 thereof.
Section 7.10. NO PETITION. The Master Servicer, by entering into
this Servicing Agreement, hereby covenants and agrees that it will not at
any time institute against the Issuer, or join in any institution against
the Issuer, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations of the
Issuer. This section shall survive the termination of this Servicing
Agreement by one year.
Section 7.11. NO RECOURSE. The Master Servicer acknowledges that
no recourse may be had against the Issuer, except as may be expressly set
forth in this Servicing Agreement.
Section 7.12. INDENTURE TRUSTEE RIGHTS. The Indenture Trustee and
the Securities Administrator shall each be entitled to the same rights,
protections, indemnities and immunities afforded to it under the Indenture
as if specifically set forth herein.
Section 7.13. WAIVER OF JURY TRIAL. EACH PARTY HERBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 7.14. NO RECOURSE TO OWNER TRUSTEE. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is
executed and delivered by [o], not individually or personally, but solely
as Owner Trustee of Renaissance Home Equity Loan Trust [o], in the exercise
of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings
and agreements by [o] but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as
creating any liability of [o], individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto and (d) under no
circumstances shall [o] be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Agreement or any other related
documents.
IN WITNESS WHEREOF, the Master Servicer, the Servicer, the Issuer, the
Indenture Trustee and the Securities Administrator have caused this Servicing
Agreement to be duly executed by their respective officers or representatives
all as of the day and year first above written.
[o],
as Master Servicer and Securities Administrator
By:
-------------------------------------
Name:
Title:
[o],
as Servicer
By:
-----------------------------
Name:
Title:
RENAISSANCE HOME EQUITY LOAN TRUST
[o], as Issuer
By: [o], not in its individual capacity, but
solely as Owner Trustee
By:
-----------------------------
Name:
Title:
[o],
as Indenture Trustee
By:
-----------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See Exhibit B to Indenture
EXHIBIT B
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
[o]
Re: Custodial Agreement dated as of [o] among Renaissance REIT Investment
Corp., as Seller, Renaissance Mortgage Acceptance Corp., as Depositor,
[o], as Servicer, [o], as Indenture Trustee and [o], as Custodian for
Renaissance Home Equity Loan Trust [o], Home Equity Loan Asset-Backed
Notes, Series [o]
--------------------------------------------------------
In connection with the administration of the Mortgage Loans held by
you, as Custodian, pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (check one):
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason:______________________
By:___________________________
(authorized signer)
[Servicer] [Master Servicer]:
______________________________
Address:______________________
Date: ________________________
CUSTODIAN
[o]
Please acknowledge the execution of the above request by your signature and date
below:
-------------------------- ----------------------
Signature Date
Documents returned to Custodian:
-------------------------- ----------------------
Custodian Date
EXHIBIT C-1
FORM OF CERTIFICATION TO BE PROVIDED TO THE MASTER SERVICER BY THE
SECURITIES ADMINISTRATOR
Re: Renaissance Home Equity Loan Trust [o] (the "Trust")
I, [identify the certifying individual], a [title] of [o], as
Securities Administrator of the Trust, hereby certify to [o] (the "Master
Servicer"), and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution reports filed in
respect of periods included in the year covered by that annual report, of the
Depositor relating to the above-referenced trust;
2. Based on my knowledge, the information in these distribution
reports prepared by the Securities Administrator, 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 light of the circumstances under which
such statements were made, not misleading as of the last day of the period
covered by that annual report;
3. Based on my knowledge, the distribution information required to be
provided by the Securities Administrator under the pooling and servicing
agreement for inclusion in these reports is included in these reports;
Date: ___________________
[o],
as Servicer
By: __________________________
Name:
Title:
EXHIBIT C-2
FORM OF CERTIFICATION TO BE
PROVIDED TO THE MASTER SERVICER BY THE SERVICER
Re: Renaissance Home Equity Loan Trust [o] (the "Trust")
I, [identify the certifying individual], a [title] of [o], as Servicer
of the Trust, hereby certify to [o] (the "Master Servicer"), and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer 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 light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
2. Based on my knowledge, the servicing information required to be
provided to the Master Servicer by the Servicer under the Servicing Agreement
has been provided to the Master Servicer;
3. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon the review required by the
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer, the Servicer
has, for the period covered by this certification fulfilled its obligations
under the Servicing Agreement; and
4. I have disclosed to the Master Servicer all significant
deficiencies relating to the Servicer's compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set forth
in the Pooling and Servicing Agreement.
Date: ___________________
[o],
as Servicer
By: __________________________
Name:
Title:
EXHIBIT D
CALCULATION OF REALIZED LOSS/GAIN FORM 332
(a) 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. Electronic or online billing printouts will be
accepted as proper documentation. Entries not properly documented will not be
reimbursed to the Servicer.
13. The total of lines 1 through 12.
(b) 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.
(c) 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 ( ).
[o]
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
_______________________ ______________________ ______________________
Servicer Loan No. Servicer Name Servicer Address
_______________________ ______________________ ______________________
[o] Loan No._____________________________
Borrower's Name:___________________________________________________
Property Address:___________________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes ________________(5)
(6) Property Maintenance ________________(6)
(7) MI/Hazard Insurance Premiums ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) $________________(12)
Cash for Keys__________________________ ________________
HOA/Condo Fees_________________________ ________________
_______________________________________ ________________
_______________________________________ ________________
TOTAL EXPENSES $ _______________(13)
CREDITS:
(14) 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) $________________(23)
EXHIBIT E
STANDARD FILE LAYOUT--SCHEDULED/SCHEDULED
-----------------------------------------------------------------------------------------------------------------------------------
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
-----------------------------------------------------------------------------------------------------------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_NAME Mortgagor name assigned to Note Max length of 30
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PMT_AMT P&I constant 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
-----------------------------------------------------------------------------------------------------------------------------------
NET_RATE Gross Interest Rate less the Service Fee 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 ($)
-----------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
Scheduled Net Interest (less Service Fee)
SCHED_NET_INT portion of P&I 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
Liquidation Principal Amt to bring balance to
LIQ_AMT zero 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
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 ($)
-----------------------------------------------------------------------------------------------------------------------------------
Soldier and Sailor Adjustment amount, if
SOILDER_SAILOR ADJ AMT applicable 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
NON ADV LOAN AMT Non Recoverable Loan Amount, if applicable 2 No commas(,) or dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT F
STANDARD FILE LAYOUT--DELINQUENCY REPORTING
-----------------------------------------------------------------------------------------------------------------------------------
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
-----------------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This
may be different than the LOAN_NBR
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan by the originator.
-----------------------------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
-----------------------------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer
to identify a group of loans in their system.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
-----------------------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
-----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
by the courts
-----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
-----------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Action
-----------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
from the borrower.
-----------------------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is occupied.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of the property.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Insurance Company.
-----------------------------------------------------------------------------------------------------------------------------------
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 ($)
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: [o] will accept alternative Loss Mitigation Types to those above, provided
that they are consistent with industry standards. If Loss Mitigation Types other
than those above are used, the Servicer must supply [o] 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:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
---------------------------------------------------------------------
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------------------------------------------------------------
001 FNMA-Death of principal mortgagor
---------------------------------------------------------------------
002 FNMA-Illness of principal mortgagor
---------------------------------------------------------------------
003 FNMA-Illness of mortgagor's family member
---------------------------------------------------------------------
004 FNMA-Death of mortgagor's family member
---------------------------------------------------------------------
005 FNMA-Marital difficulties
---------------------------------------------------------------------
006 FNMA-Curtailment of income
---------------------------------------------------------------------
007 FNMA-Excessive Obligation
---------------------------------------------------------------------
008 FNMA-Abandonment of property
---------------------------------------------------------------------
009 FNMA-Distant employee transfer
---------------------------------------------------------------------
011 FNMA-Property problem
---------------------------------------------------------------------
012 FNMA-Inability to sell property
---------------------------------------------------------------------
013 FNMA-Inability to rent property
---------------------------------------------------------------------
014 FNMA-Military Service
---------------------------------------------------------------------
015 FNMA-Other
---------------------------------------------------------------------
016 FNMA-Unemployment
---------------------------------------------------------------------
017 FNMA-Business failure
---------------------------------------------------------------------
019 FNMA-Casualty loss
---------------------------------------------------------------------
022 FNMA-Energy environment costs
---------------------------------------------------------------------
023 FNMA-Servicing problems
---------------------------------------------------------------------
026 FNMA-Payment adjustment
---------------------------------------------------------------------
027 FNMA-Payment dispute
---------------------------------------------------------------------
029 FNMA-Transfer of ownership pending
---------------------------------------------------------------------
030 FNMA-Fraud
---------------------------------------------------------------------
031 FNMA-Unable to contact borrower
---------------------------------------------------------------------
INC FNMA-Incarceration
---------------------------------------------------------------------
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
---------------------------------------------------------------------
STATUS CODE STATUS DESCRIPTION
---------------------------------------------------------------------
09 Forbearance
---------------------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
---------------------------------------------------------------------
24 Government Seizure
---------------------------------------------------------------------
26 Refinance
---------------------------------------------------------------------
27 Assumption
---------------------------------------------------------------------
28 Modification
---------------------------------------------------------------------
29 Charge-Off
---------------------------------------------------------------------
30 Third Party Sale
---------------------------------------------------------------------
31 Probate
---------------------------------------------------------------------
32 Military Indulgence
---------------------------------------------------------------------
43 Foreclosure Started
---------------------------------------------------------------------
44 Deed-in-Lieu Started
---------------------------------------------------------------------
49 Assignment Completed
---------------------------------------------------------------------
61 Second Lien Considerations
---------------------------------------------------------------------
62 Veteran's Affairs-No Bid
---------------------------------------------------------------------
63 Veteran's Affairs-Refund
---------------------------------------------------------------------
64 Veteran's Affairs-Buydown
---------------------------------------------------------------------
65 Chapter 7 Bankruptcy
---------------------------------------------------------------------
66 Chapter 11 Bankruptcy
---------------------------------------------------------------------
67 Chapter 13 Bankruptcy
---------------------------------------------------------------------
EXHIBIT G
FORM OF MORTGAGE LOAN SALE AND CONTRIBUTION AGREEMENT
See Exhibit 99.1
EXHIBIT H
LIST OF APPRAISAL FIRMS