FLOW INTERIM SERVICING AGREEMENT between LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC., PURCHASER and GREENPOINT MORTGAGE FUNDING, INC. SELLER Dated as of April 10, 2006 CONVENTIONAL FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS...
Execution
between
▇▇▇▇▇▇
CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
PURCHASER
and
GREENPOINT
MORTGAGE FUNDING, INC.
SELLER
Dated
as
of April 10, 2006
CONVENTIONAL
FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS
Group
No
2006-FLOW
This
Flow
Interim Servicing Agreement (the “Agreement”) is entered into as of the
12th
day of
December 2001, by and between GREENPOINT MORTGAGE FUNDING INC. (the
“Seller”),
a
California corporation and ▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS
HOLDINGS INC., a Delaware corporation (the “Purchaser”).
WHEREAS,
the Purchaser and Seller entered into a Mortgage Loan Purchase and Warranties
Agreement dated as of the date hereof (the “Purchase Agreement”) pursuant to
which the Purchaser shall, from time to time, purchase from the Seller certain
conventional, residential, fixed and adjustable rate first and second lien
mortgage loans (the “Mortgage
Loans”)
delivered as whole loans on a servicing released basis (each delivery of
Mortgage Loans, a “Mortgage
Loan Package”);
and
WHEREAS,
the Purchaser desires to have the Seller service the Mortgage Loans in each
Mortgage Loan Package during the period between the related Closing Date
and the
related Transfer Date (the “Interim
Period”),
the
Seller desires to service and administer the Mortgage Loans on behalf of
the
Purchaser during the Interim Period, and the parties desire to provide the
terms
and conditions of such interim servicing by the Seller.
NOW,
THEREFORE, in consideration of the mutual covenants made herein and for other
good and valuable consideration the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Purchase Agreement. The following terms are defined as follows
(except as otherwise agreed by the parties).
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of (i) prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with applicable state, local and federal laws,
rules and regulations.
Acknowledgment
Agreement:
The
agreement, substantially in the form of Exhibit 6 hereto, to be executed
by the
Seller and the Purchaser on each Closing Date.
Agreement:
This
agreement between the Purchaser and the Seller for the interim servicing
and
administration of the Mortgage Loans.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to
Section 2.04.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America
the
obligations of which are backed by the full faith and credit of the United
States of America; and
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state
thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by ▇▇▇▇▇’▇ Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by ▇▇▇▇▇’▇
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution
or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least “Aa” by
▇▇▇▇▇’▇ Investors Service, Inc.
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to
Section 2.06.
Escrow
Payment:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
-2-
Event
of Default:
Any one
of the conditions or circumstances enumerated in
Section 11.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
Mae Guides:
The
▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide and all amendments
or additions thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to
Section 2.13.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interim
Period:
The
period between the related Closing Date and the related Transfer
Date.
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Master
Servicer:
Shall
have the meaning set forth in Section 12.10.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in
Section 2.12.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the sum
of
(a) the Servicing Fee and (b) the LPMI Fee, if any.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The Wall Street Journal.
Purchase
Agreement:
The
Flow Mortgage Loan Purchase and Warranties Agreement between the Purchaser
and
the Seller related to the purchase of the Mortgage Loans dated as of the
related
Cut-off Date.
Purchaser:
Shall
have the meaning set forth in the first paragraph of this Agreement; provided,
however, that, for the purpose of compliance with Regulation AB, references
to
the Purchaser shall be deemed to include any assignees or designees of the
Purchaser, such as any Depositor, a master servicer or a trustee.
-3-
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF
or the
SAIF and the debt obligations of which are rated AA or better by Standard
&
Poor’s Corporation.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Regulation AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
Remittance
Date:
The
10th day (or if such 10th day is not a Business Day, the first Business Day
immediately following) of any month, beginning with the first Remittance
Date.
REO
Disposition:
The
final sale by the Seller of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to
Section 2.17.
REO
Property:
A
Mortgaged Property acquired by the Seller on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in
Section 2.17.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller
Information:
As
defined in Section 8.01(b)(A)(1).
Servicer:
As
defined in Section 3.02(b)(ii).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its servicing obligations, including, but not
limited to, the cost of (a) the preservation, restoration and protection
of the
Mortgaged Property, (b) any enforcement or judicial proceedings, including
foreclosures, (c) the management and liquidation of the Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage and (d)
compliance with the obligations under Section 2.08.
-4-
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, an amount equal to $7.00 per month. Such fee
shall be payable monthly and shall be pro rated for any portion of a month
during which the Mortgage Loans is serviced pursuant to this Agreement. The
obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted
by
Section 2.05) of such Monthly Payment collected by the Seller, or as
otherwise provided under Section 2.05.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser or the Custodian for the benefit of the Purchaser and copies of
the
Mortgage Loan Documents listed on Exhibit
B
to the
Purchase Agreement.
Servicing
Officer:
Any
officer of the Seller involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Seller to the Purchaser upon request, as such list
may
from time to time be amended.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Transfer
Date:
With
respect to any Mortgage Loan Package, the date mutually agreed upon by the
Seller and the Purchaser and set forth on the Acknowledgment Agreement, which
shall not be more than 60 days following the related Closing Date, unless
Purchaser notifies the Seller that a longer period of time is
needed.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
-5-
ARTICLE
II
SERVICING
Section
2.01 Seller
to Act as Servicer. With
respect to the Mortgage Loans in each Mortgage Loan Package purchased by
the
Purchaser from the Seller, from and after the related Closing Date and the
execution of the related Acknowledgment Agreement, the Seller, as an independent
contractor, shall service and administer the Mortgage Loans and shall have
full
power and authority, acting alone, to do any and all things in connection
with
such servicing and administration which the Seller may deem necessary or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices.
Consistent
with the terms of this Agreement, the Seller 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
Seller’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that unless the Seller has obtained the prior written consent of
the
Purchaser, the Seller shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment of principal or interest, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Mortgage Loan. In the event of any such modification which permits
the deferral of interest or principal payments on any Mortgage Loan, the
Seller
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred,
deposit
in the Custodial Account from its own funds, in accordance with
Section 2.04, the difference between (a) such month’s principal and
one month’s interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Seller shall be entitled to reimbursement for such advances to
the same extent as for all other advances made pursuant to Section 2.05.
Without limiting the generality of the foregoing, the Seller shall continue,
and
is hereby authorized and empowered, to execute and deliver on behalf of itself
and the Purchaser, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments,
with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
If
reasonably required by the Seller, the Purchaser shall furnish the Seller
with
any powers of attorney and other documents necessary or appropriate to enable
the Seller to carry out its servicing and administrative duties under this
Agreement.
In
servicing and administering the Mortgage Loans, the Seller shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser’s reliance on the Seller.
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, Seller shall be under no obligation to deal with any Person with
respect to this Agreement or the Mortgage Loans unless the Seller has been
notified of such transfers as provided in this Section 2.01. The Purchaser
may sell and transfer, in whole or in part, the Mortgage Loans, provided
that no
such sale and transfer shall be binding upon Seller unless such transferee
shall
agree in writing in the form of the Assignment and Assumption Agreement attached
to the Purchase Agreement as Exhibit H, to be bound by the terms of this
Agreement and the Purchase Agreement, and an executed copy of the same shall
have been delivered to the Seller. Upon receipt thereof, Seller shall ▇▇▇▇
its
books and records to reflect the ownership of the Mortgage Loans by such
assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit
of the
Purchaser and Seller and their permitted successors, assignees and
designees.
-6-
The
Seller shall cause to be maintained for each Cooperative Loan a copy of the
financing statements and shall file such financing statements and continuation
statements as necessary, in accordance with the Uniform Commercial Code
applicable in the jurisdiction in which the related Cooperative Apartment
is
located, to perfect and protect the security interest and lien of the
Purchaser.
Section
2.02 Liquidation
of Mortgage Loans.
In the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 is not paid when the same becomes due and payable, or in the
event the Mortgagor fails to perform any other covenant or obligation under
the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Seller shall take such action as (1) the Seller would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3) the Seller shall determine prudently to be in the best interest of
Purchaser, and (4) is consistent with any related PMI Policy. In the event
that any payment due under any Mortgage Loan is not postponed pursuant to
Section 2.01 and remains delinquent for a period of 90 days or any other
default continues for a period of 90 days beyond
the expiration of any grace or cure period, the Seller shall commence
foreclosure proceedings, provided that, prior to commencing foreclosure
proceedings, the Seller shall notify the Purchaser in writing of the
Seller’s
intention to do so, and the Seller shall not commence foreclosure proceedings
if
the Purchaser objects to such action within 10 Business Days of receiving
such
notice. In such connection, the Seller shall from its own funds make all
necessary and proper Servicing Advances, provided, however, that the Seller
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration or preservation of any Mortgaged Property, unless
it
shall determine (a) that such preservation, restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan to Purchaser
after reimbursement to itself for such expenses and (b) that such expenses
will be recoverable by it either through Liquidation Proceeds (respecting
which
it shall have priority for purposes of withdrawals from the Custodial Account
pursuant to Section 2.05) or through Insurance Proceeds (respecting which
it shall have similar priority).
Section
2.03 Collection
of Mortgage Loan Payments.
Continuously from the related Cut-off Date until the related Transfer
Date the Seller shall proceed diligently to collect all payments due under
each of the Mortgage Loans when the same shall become due and payable and
shall
take special care in ascertaining and estimating Escrow Payments and all
other
charges that will become due and payable with respect to the Mortgage Loans
and
each related Mortgaged Property, to the end that the installments payable
by the
Mortgagors will be sufficient to pay such charges as and when they become
due
and payable.
-7-
Section
2.04 Establishment
of and Deposits to Custodial Account.
The
Seller shall segregate and hold all funds collected and received pursuant
to the
Mortgage Loans separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled “GreenPoint Mortgage Funding Inc. in
trust for ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.,
Residential Fixed and Adjustable Rate Mortgage Loans, Group No 2006-FLOW
and
various Mortgagors”. The Custodial Account shall be established with a Qualified
Depository acceptable to the Purchaser. Any funds deposited in the Custodial
Account shall at all times be fully insured to the full extent permitted
under
applicable law. Funds deposited in the Custodial Account may be drawn on
by the
Seller in accordance with Section 2.05. The creation of any Custodial
Account shall be evidenced by a certification in the form of Exhibit 2 hereto,
in the case of an account established with the Seller, or by a letter agreement
in the form of Exhibit 3 hereto, in the case of an account held by a depository
other than the Seller. A copy of such certification or letter agreement shall
be
furnished to the Purchaser and, upon request, to any subsequent
Purchaser.
The
Seller shall deposit in the Custodial Account on a daily basis, within two
(2)
Business Days of receipt, and retain therein, the following collections received
by the Seller after the related Cut-off Date (other than with respect to
each
LPMI Loan, in the amount of the LPMI Fee):
(i) all
payments on account of principal on the Mortgage Loans;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 2.11 (other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or released
to
the Mortgagor in accordance with Section 2.15), Section 2.12 and
Section 2.16;
(v) all
Condemnation Proceeds which are not applied to the restoration or repair
of the
Mortgaged Property or released to the Mortgagor in accordance with
Section 2.15;
(vi) any
amount required to be deposited in the Custodial Account pursuant to
Section 2.01, 2.10, 2.17, 4.01 or 4.02;
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to the terms of the Purchase Agreement; and
-8-
(viii) any
amounts required to be deposited by the Seller pursuant to Section 2.11 in
connection with the deductible clause in any blanket hazard insurance
policy.
(ix) any
prepayment penalties, late payment charges and assumption fees received in
connection with the Mortgage Loans.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of assumption fees, to the extent
permitted by Section 4.01, need not be deposited by the Seller into the
Custodial Account. Any interest paid on funds deposited in the Custodial
Account
by the depository institution shall accrue to the benefit of the Seller and
the
Seller shall be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 2.05.
Section
2.05 Permitted
Withdrawals From Custodial Account.
The
Seller shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 3.01;
(ii) to
reimburse itself for unreimbursed Servicing Advances, any unpaid Servicing
Fees
and for unreimbursed advances of Seller funds made pursuant to Section 2.17,
the
Seller’s right to reimburse itself pursuant to this subclause (iii) with respect
to any Mortgage Loan being limited to related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and such other amounts as may be collected by
the
Seller from the Mortgagor or otherwise relating to the Mortgage Loan, it
being
understood that, in the case of any such reimbursement, the Seller’s right
thereto shall be prior to the rights of the Purchaser except that, where
the
Seller is required to repurchase a Mortgage Loan pursuant to the terms of
the
Purchase Agreement or Section 4.02 of this Agreement, the Seller’s right to
such reimbursement shall be subsequent to the payment to the Purchaser of
the
Repurchase Price pursuant to such sections and all other amounts required
to be
paid to the Purchaser with respect to such Mortgage Loan;
(iii) to
pay
itself interest on funds deposited in the Custodial Account;
(iv) to
reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 4.03;
(v) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(vi) to
withdraw funds deposited in error.
In
the
event that the Custodial Account is interest bearing, on each Remittance
Date,
the Seller shall withdraw all funds from the Custodial Account except for
those
amounts which, pursuant to Section 3.01, the Seller is not obligated to
remit on such Remittance Date. The Seller may use such withdrawn funds only
for
the purposes described in this Section 2.05.
-9-
Section
2.06 Establishment
of and Deposits to Escrow Account.
The
Seller shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general
assets
and shall establish and maintain one or more Escrow Accounts, in the form
of
time deposit or demand accounts, titled, “GreenPoint Mortgage Funding Inc., in
trust for ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.
Residential Fixed and Adjustable Rate Mortgage Loans, Group No 2006-FLOW,
and
various Mortgagors”. The Escrow Accounts shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the
Seller
in accordance with Section 2.07. The creation of any Escrow Account shall
be evidenced by a certification in the form of Exhibit 4 hereto, in the case
of
an account established with the Seller, or by a letter agreement in the form
of
Exhibit 5 hereto, in the case of an account held by a depository other than
the Seller. A copy of such certification shall be furnished to the Purchaser
and, upon request, to any subsequent Purchaser.
The
Seller shall deposit in the Escrow Account or Accounts on a daily basis,
within
two (2) Business Days of receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of
this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Seller shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in
Section 2.07. The Seller shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than
interest on escrowed funds required by law to be paid to the Mortgagor. To
the
extent required by law, the Seller shall pay interest on escrowed funds to
the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing
or
that interest paid thereon is insufficient for such purposes.
Section
2.07 Permitted
Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Seller
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Seller for any Servicing Advance made by the Seller pursuant
to
Section 2.08 with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of
Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required
under
the terms of the related Mortgage Loan;
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(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 2.15;
(vi) to
pay to
the Seller, or any Mortgagor to the extent required by law, any interest
paid on
the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
Section
2.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Seller shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Seller 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 Seller shall determine that any such payments are
made
by the Mortgagor at the time they first become due. The Seller assumes full
responsibility for the timely payment of all such bills and shall effect
timely
payment of all such charges irrespective of each Mortgagor’s faithful
performance in the payment of same or the making of the Escrow Payments,
and the
Seller shall make advances from its own funds to effect such
payments.
Section
2.09 PMI
Obligations. The
Seller shall comply with all provisions of applicable state and federal law
relating to the cancellation of, or collection of premiums
with respect to, PMI Policies, including, but not limited to, the provisions
of
the Homeowners Protection Act of 1998, and all regulations promulgated
thereunder, as amended from time to time. If the Mortgagor fails to pay any
PMI
Policy premium, the Seller shall be obligated to make such premium
payments.
Section
2.10 Protection
of Accounts.
The
Seller may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. Such transfer shall be made only
upon
obtaining the consent of the Purchaser, which consent shall not be withheld
unreasonably.
The
Seller shall bear any expenses, losses or damages sustained by the Purchaser
because the Custodial Account and/or the Escrow Account are not demand deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Seller be invested in Eligible Investments; provided that in the event
that
amounts on deposit in the Custodial Account or the Escrow Account exceed
the
amount fully insured by the FDIC (the “Insured Amount”) the Seller shall be
obligated to invest the excess amount over the Insured Amount in Eligible
Investments on the same Business Day as such excess amount becomes present
in
the Custodial Account or the Escrow Account. Any such Eligible Investment
shall
mature no later than the Determination Date next following the date of such
Eligible Investment, provided, however, that if such Eligible Investment
is an
obligation of a Qualified Depository (other than the Seller) that maintains
the
Custodial Account or the Escrow Account, then such Eligible Investment may
mature on such Remittance Date. Any such Eligible Investment shall be made
in
the name of the Seller in trust for the benefit of the Purchaser. All income
on
or gain realized from any such Eligible Investment shall be for the benefit
of
the Seller and may be withdrawn at any time by the Seller. Any losses incurred
in respect of any such investment shall be deposited in the Custodial Account
or
the Escrow Account, by the Seller out of its own funds immediately as
realized.
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Section
2.11 Maintenance
of Hazard Insurance.
The
Seller shall cause to be maintained for each Mortgage Loan, hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer rated A:VI or better in the current Best’s Key Rating Guide
(“Best’s”)
against loss by fire, hazards of extended coverage and such other hazards
as are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the improvements securing such Mortgage Loan and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been
made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier rated A:VI or better in Best’s in an amount
representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and
(ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended. If at any time during the term
of
the Mortgage Loan, the Seller determines in accordance with applicable law
and
pursuant to the FNMA Guides that a Mortgaged Property is located in a special
flood hazard area and is not covered by flood insurance or is covered in
an
amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Seller shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within forty-five (45) days
after such notification, the Seller shall immediately force place the required
flood insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Seller shall
verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with
then
current ▇▇▇▇▇▇ ▇▇▇ requirements, and secure from the owner’s association its
agreement to notify the Seller promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
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The
Seller shall cause to be maintained on each Mortgaged Property earthquake
or
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In
the
event that the Purchaser or the Seller shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Seller shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Seller as loss payee and shall
be
endorsed with standard or New York mortgagee clauses, without contribution,
which shall provide for at least 30 days prior written notice of any
cancellation, reduction in amount or material change in coverage.
The
Seller shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Seller
shall
not accept any such insurance policies from insurance companies unless such
companies are rated A:VI or better in Best’s and are licensed to do business in
the jurisdiction in which the Mortgaged Property is located. The Seller shall
determine that such policies provide sufficient risk coverage and amounts,
that
they insure the property owner, and that they properly describe the property
address. The Seller shall furnish to the Mortgagor a formal notice of expiration
of any such insurance in sufficient time for the Mortgagor to arrange for
renewal coverage by the expiration date.
Pursuant
to Section 2.04, any amounts collected by the Seller under any such
policies (other than amounts to be deposited in the Escrow Account and applied
to the restoration or repair of the related Mortgaged Property, or property
acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Seller’s normal servicing procedures as
specified in Section 2.15) shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.05.
Section
2.12 Maintenance
of Mortgage Impairment Insurance.
In the
event that the Seller shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 2.11 and
otherwise complies with all other requirements of Section 2.11, it shall
conclusively be deemed to
have
satisfied its obligations as set forth in Section 2.11. Any amounts
collected by the Seller under any such policy relating to a Mortgage Loan
shall
be deposited in the Custodial Account subject to withdrawal pursuant to
Section 2.05. Such policy may contain a deductible clause, in which case,
in the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 2.11, and there shall have been a
loss which would have been covered by such policy, the Seller shall deposit
in
the Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause,
such amount to be deposited from the Seller’s funds, without reimbursement
therefor. Upon request of the Purchaser, the Seller shall cause to be delivered
to the Purchaser a certified true copy of such policy and a statement from
the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days’ prior written notice to the
Purchaser.
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Section
2.13 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Seller shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Seller
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in
the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Seller against losses, including forgery, theft, embezzle-ment, fraud, errors
and omissions and negligent acts of such Seller Employees. Such Fidelity
Bond
and Errors and Omissions Insurance Policy also shall protect and insure the
Seller against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 2.13 requiring such Fidelity
Bond and Errors and Omissions Insurance Policy shall diminish or relieve
the
Seller from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇
Guides or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ & Servicers’ Guide.
Upon the request of the Purchaser, the Seller shall cause to be delivered
to the
Purchaser a certified true copy of such fidelity bond and insurance policy
and a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without 30
days’
prior written notice to the Purchaser.
Section
2.14 Inspections.
The
Seller shall inspect the Mortgaged Property as often as deemed necessary
by the
Seller to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 60 days delinquent,
the Seller immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or
as may
be required by the primary mortgage guaranty insurer. The Seller shall keep
a
written report of each such inspection.
Section
2.15 Restoration
of Mortgaged Property.
The
Seller need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, the Seller shall
comply with the following conditions in connection with any such release
of
Insurance Proceeds or Condemnation Proceeds:
(i) the
Seller shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
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(ii) the
Seller shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Seller shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Seller shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Seller is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
2.16 Maintenance
of PMI Policy and LPMI Policy; Claims.
(a) With
respect to each Mortgage Loan with a LTV in excess of 80%, the Seller
shall:
(i) with
respect to Mortgage Loans which are not LPMI Loans, in accordance with state
and
federal laws, the Seller shall, without any cost to the Purchaser, maintain
or
cause the Mortgagor to maintain in full force and effect a PMI Policy insuring
that portion of the Mortgage Loan in excess of 75% of value, and shall pay
or
shall cause the Mortgagor to pay the premium thereon on a timely basis, until
the LTV of such Mortgage Loan is reduced to 80%. In the event that such PMI
Policy shall be terminated, the Seller shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated PMI Policy. If the insurer shall cease
to
be a Qualified Insurer, the Seller shall determine whether recoveries under
the
PMI Policy are jeopardized for reasons related to the financial condition
of
such insurer, it being understood that the Seller shall in no event have
any
responsibility or liability for any failure to recover under the PMI Policy
for
such reason. If the Seller determines that recoveries are so jeopardized,
it
shall notify
the Purchaser and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Seller shall not take any action
which would result in noncoverage under any applicable PMI Policy of any
loss
which, but for the actions of the Seller would have been covered thereunder.
In
connection with any assumption or substitution agreement entered into or
to be
entered into pursuant to Section 4.01, the Seller shall promptly notify the
insurer under the related PMI Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such PMI Policy and shall take
all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as a
result
of such assumption or substitution of liability, the Seller shall obtain
a
replacement PMI Policy as provided above.
(ii) with
respect to LPMI Loans, maintain in full force and effect an LPMI Policy insuring
that portion of the Mortgage Loan in excess of 75% (or such other percentage
as
stated in the related Acknowledgment Agreement) of value, and from time to
time,
withdraw the LPMI Fee with respect to such LPMI Loan from the Custodial Account
in order to pay the premium thereon on a timely basis, until the LTV of such
Mortgage Loan is reduced to 80%. In the event that the interest payments
made
with respect to any LPMI Loan are less than the LPMI Fee, the Seller shall
advance from its own funds the amount of any such shortfall in the LPMI Fee,
in
payment of the premium on the related LPMI Policy. Any such advance shall
be a
Servicing Advance subject to reimbursement pursuant to the provisions on
Section
2.05. In the event that such LPMI Policy shall be terminated, the Seller
shall
obtain from another Qualified Insurer a comparable replacement policy, with
a
total coverage equal to the remaining coverage of such terminated LPMI Policy,
at substantially the same fee level. If the insurer shall cease to be a
Qualified Insurer, the Seller shall determine whether recoveries under the
LPMI
Policy are jeopardized for reasons related to the financial condition of
such
insurer, it being understood that the Seller shall in no event have any
responsibility or liability for any failure to recover under the LPMI Policy
for
such reason. If the Seller determines that recoveries are so jeopardized,
it
shall notify the Purchaser and the Mortgagor, if required, and obtain from
another Qualified Insurer a replacement insurance policy. The Seller shall
not
take any action which would result in noncoverage under any applicable LPMI
Policy of any loss which, but for the actions of the Seller would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Seller shall
promptly notify the insurer under the related LPMI Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
LPMI Policy and shall take all actions which may be required by such insurer
as
a condition to the continuation of coverage under such PMI Policy. If such
LPMI
Policy is terminated as a result of such assumption or substitution of
liability, the Seller shall obtain a replacement LPMI Policy as provided
above.
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(b) In
connection with its activities as servicer, the Seller agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
or LPMI Policy and, in this regard, to take such action as shall be necessary
to
permit recovery under any PMI Policy or LPMI Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 2.04, any amounts collected by the
Seller under any PMI Policy or LPMI Policy shall be deposited in the Custodial
Account, subject to withdrawal pursuant to Section 2.05.
(c) Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional
PMI
Policy on any Mortgage Loan which already has a PMI Policy in place, or (ii)
obtain a PMI Policy for any Mortgage Loan which does not already have a PMI
Policy in place. In any event, the Seller agrees to administer such PMI Policies
in accordance with the Agreement or any Reconstitution Agreement.
Section
2.17 Title,
Management and Disposition of REO Property. In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Seller, or such other name as the Purchaser should designate.
The
Person or Persons holding such title other than the Purchaser shall acknowledge
in writing that such title is being held as nominee for the
Purchaser.
The
Seller shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and sale. The
Seller,
either itself or through an agent selected by the Seller, shall 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 Seller shall attempt to sell the same (and
may
temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Seller deems
to be
in the best interest of the Purchaser.
-16-
The
Seller shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless the Seller determines,
and
gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If
a
period longer than one year is permitted under the foregoing sentence and
is
necessary to sell any REO Property, (i) the Seller shall report monthly to
the Purchaser as to the progress being made in selling such REO Property
and
(ii) if, with the written consent of the Purchaser, a purchase money
mortgage is taken in connection with such sale, such purchase money mortgage
shall name the Seller as mortgagee, and such purchase money mortgage shall
not
be held pursuant to this Agreement, but instead a separate participation
agreement among the Seller and Purchaser shall be entered into with respect
to
such purchase money mortgage.
The
Seller shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in an amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
The
disposition of REO Property shall be carried out by the Seller at such price,
and upon such terms and conditions, as the Seller deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Seller shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to this Section, and on the Remittance
Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
With
respect to each REO Property, the Seller shall hold all funds collected and
received in connection with the operation of the REO Property in the Custodial
Account. The Seller shall cause to be deposited on a daily basis upon the
receipt thereof in each Custodial Account all revenues received with respect
to
the conservation and disposition of the related REO Property.
Notwithstanding
the foregoing, at any time and from time to time, the Purchaser may at its
election terminate this Agreement with respect to one or more REO Properties
as
provided by Section 6.03(c).
Section
2.18 Permitted
Withdrawals with respect to REO Property.
The
Seller shall withdraw REO funds on deposit in the Custodial Account with
respect
to each related REO Property necessary for the proper operation, management
and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 2.11 and the fees of any managing agent
acting on behalf of the Seller. The Seller shall make monthly distributions
on
each Remittance Date to the Purchaser of the net cash flow from the REO Property
(which shall equal the revenues from such REO Property net of the expenses
described in Section 2.17 and of any reserves reasonably required from time
to time to be maintained to satisfy anticipated liabilities for such
expenses).
-17-
Section
2.19 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 2.20, the Seller shall
furnish to the Purchaser on or before the 10th day of each month a statement
with respect to any REO Property covering the operation of such REO Property
for
the previous month and the Seller’s efforts in connection with the sale of such
REO Property and any rental of such REO Property incidental to the sale thereof
for the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section
2.20 Liquidation
Reports.
Upon the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Seller
shall submit to the Purchaser a liquidation report with respect to such
Mortgaged Property.
Section
2.21 Notification
of Adjustments.
With
respect to each ARM Mortgage Loan, the Seller shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Seller shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Seller shall promptly, upon written
request therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Seller or the receipt
of
notice from the Purchaser that the Seller has failed to adjust a Mortgage
Interest Rate in accordance with the terms of the related Mortgage Note,
the
Seller shall immediately deposit in the Custodial Account from its own funds
the
amount of any interest loss or deferral caused the Purchaser
thereby.
Section
2.22 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged Property,
the
Seller shall report such foreclosure or abandonment as required pursuant
to
Section 6050J of the Code.
Section
2.23 Credit
Reporting
For each
Mortgage Loan, the Seller shall accurately and fully furnish, in accordance
with
the Fair Credit Reporting Act and its implementing regulations, accurate
and
complete information on its borrower credit files to each of the following
credit repositories: Equifax Credit Information Services, Inc., TransUnion,
LLC
and Experian Information Solution, Inc. on a monthly basis.
Section
2.24 Waiver
of Prepayment Charges.
Except
as set forth below, the Seller or any designee of the Seller shall not waive
any
prepayment charge with respect to any Mortgage Loan. Notwithstanding the
above,
the Seller or its designee may waive a prepayment charge without paying to
the
Custodial Account the amount of such prepayment charge only if the related
prepayment is not the result of a refinancing by the Seller or its designee
and
such waiver (a) relates to a defaulted Mortgage Loan or a reasonably foreseeable
default, such waiver is standard and customary in servicing similar mortgage
loans to the Mortgage Loans, and such waiver, in the reasonable judgment
of the
Seller, would maximize recovery of total proceeds from the Mortgage Loan,
taking
into account the amount of such prepayment charge and the related Mortgage
Loan,
or (b) relates to a prepayment charge the collection of which, in the reasonable
judgment of the Seller, would be a violation of applicable laws.
-18-
Section
2.25 Safeguarding
Customer Information.
The
Seller shall implement and maintain security measures designed to meet the
objectives of the Interagency Guidelines Establishing Information Security
Standards (the “Guidelines”),
Section 216 of the Fair and Accurate Transactions Act (including its
implementing regulations, “FACTA”),
as
well as any amendments thereto or other applicable regulations regarding
safeguarding information enacted or released by a regulatory agency having
jurisdiction over the Purchaser or the Seller. In addition, the Seller
represents to the Purchaser that it has in place a response program to respond
to any incident of unauthorized access to Customer Information (as defined
in
the Guidelines). At all times during the term of this Agreement, the Seller
shall maintain administrative, technical and physical safeguards, including
proper information disposal procedures, to ensure the security, confidentiality
and integrity of Customer Information, and to protect such information against
any threats or hazards, including, without limitation, unauthorized access
or
use. The Seller will periodically (but not less than annually) review and
update
its information security procedures.
The
Seller shall, at the Seller’s sole expense, take appropriate actions, including
such actions as the Purchaser may request, to address any actual or apparent
incident of theft or unauthorized access, use or disclosure of any Customer
Information maintained by the Seller, including providing prompt notification
to
the Purchaser of any such incident and will, at the Purchaser’s request, at the
Seller’s sole expense, notify the Purchaser’s customers on the Purchaser’s
behalf of any such unauthorized access, use or disclosure. Nothing in this
Section shall limit the Seller’s obligations under Section 8.01 of this
Agreement.
The
Seller shall promptly provide the Purchaser with information regarding such
information security measures upon the reasonable request of the Purchaser
or
its designee (including any Master Servicer of the Mortgage Loans) which
information shall include, but not be limited to, any Statement on Auditing
Standards (SAS) No. 70 report covering the Seller’s operations, and any other
audit reports, summaries of test results or equivalent measures or evaluations
taken by the Seller with respect to its security measures.
With
respect to any third party provided access to Customer Information in accordance
with this Agreement, the Seller will enter into a written agreement with
such
third party requiring safeguarding of Customer Information in a manner no
less
restrictive than the Seller’s obligations under this Agreement, and including
those affirmative obligations set forth in this Section and in any other
Section
of this Agreement relating to the use or protection of Customer
Information.
The
obligations set forth in this Section shall survive termination of the
Agreement.
-19-
Section
2.26 Credit
Reporting.
For
each Mortgage Loan, the Seller shall accurately and fully furnish on a monthly
basis and in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g. favorable and unfavorable)
on its borrower credit files to each of the following credit repositories:
Equifax, Credit Information Services, Inc., Experian Information Solutions,
Inc.
and Trans Union, LLC.
ARTICLE
III
PAYMENTS
TO PURCHASER
Section
3.01 Remittances.
On each
Remittance Date the Seller shall remit by wire transfer of immediately available
funds to the Purchaser (a) all amounts deposited in the Custodial Account
as of the close of business on the Determination Date (net of charges against
or
withdrawals from the Custodial Account pursuant to Section 2.05), plus
(b) all amounts, if any, which the Seller is obligated to distribute
pursuant to Section 2.03.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Seller
shall
pay to the Purchaser interest on any such late payment at an annual rate
equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Seller
on
the date such late payment is made and shall cover the period commencing
with
the day following such second Business Day and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Seller of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the Seller.
Section
3.02 Statements
to Purchaser. i)
Not
later than the Remittance Date, the Seller shall furnish to the Purchaser
a
Monthly
Remittance Advice, with a trial balance report attached thereto, in the form
of
Exhibit 1-1 annexed hereto and a Standard Layout for Defaulted Loan Report
in
the form of Exhibit 1-2 annexed hereto in hard copy and electronic medium
mutually acceptable to the parties as to the preceding remittance and the
period
ending on the last day of the preceding month.
In
addition, not more than 60 days after the end of each calendar year, the
Seller
shall furnish to each Person who was a Purchaser at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for
the
applicable portion of such year.
Such
obligation of the Seller shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Seller
pursuant to any requirements of the Internal Revenue Code as from time to
time
are in force.
The
Seller shall prepare and file any and all tax returns, information statements
or
other filings required to be delivered to any governmental taxing authority
or
to the Purchaser pursuant to any applicable law with respect to the Mortgage
Loans and the transactions contemplated hereby. In addition, the Seller shall
provide the Purchaser with such information concerning the Mortgage Loans
as is
necessary for the Purchaser to prepare its federal income tax return as the
Purchaser may reasonably request from time to time.
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(b) In
connection with any Securitization Transaction the Seller shall (1) within
five
Business Days following request by the Purchaser or any Depositor, provide
to
the Purchaser and such Depositor (or, as applicable, cause each Subservicer
to
provide), in writing and in form and substance reasonably satisfactory to
the
Purchaser and such Depositor, the information and materials specified in
paragraphs (i), (ii) and (v) of this Section 3.02(b), and (2) as promptly
as
practicable following notice to or discovery by the Seller, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified
in
paragraph (iii) of this Section 3.02(b).
(i) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller and each Subservicer, as applicable, as
is
requested for the purpose of compliance with Items 1103(a)(1), 1117 and 1119
of
Regulation AB. Such information shall include, at a minimum:
(A) a
description of any material (as determined in accordance with the provisions
of
Regulation AB) legal or governmental proceedings pending (or known to be
contemplated) against the Seller and each Subservicer; and
(B) a
description of any affiliation or relationship between the Seller, each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Seller by the Purchaser or any Depositor
in
writing in advance of such Securitization Transaction:
1) the
sponsor;
2) the
depositor;
3) the
issuing entity;
4) any
servicer;
5) any
trustee;
6) any
originator;
7) any
significant obligor;
8) any
enhancement or support provider; and
9) any
other
material transaction party.
(ii) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Item 1108 of Regulation AB. Such information shall include, at a
minimum:
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(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the
related
asset-backed securities, as applicable, including, without
limitation:
1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
2) the
extent of outsourcing the Servicer utilizes;
3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type
similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
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(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the
effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(iii) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Subservicer
to)
(a) notify the Purchaser and any Depositor in writing of (1) any material
(as
determined in accordance with the provisions of Regulation AB) litigation
or
governmental proceedings pending against the Seller or any Subservicer and
(2)
any affiliations or relationships that develop following the closing date
of a
Securitization Transaction between the Seller or any Subservicer and any
of the
parties specified in clause (B) of paragraph (i) of this Section 3.02(b)
(and
any other parties identified in writing by the requesting party) with respect
to
such Securitization Transaction, and (b) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or
relationships.
(iv) As
a
condition to the succession to the Seller or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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(v) In
addition to such information as the Seller, as servicer, is obligated to
provide
pursuant to other provisions of this Agreement, if so requested by the Purchaser
or any Depositor, the Seller shall provide such information regarding the
performance or servicing of the Mortgage Loans as is reasonably required
to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the servicer under this Agreement,
commencing with the first such report due not less than ten Business Days
following such request.
Section
3.03 Principal
and Interest Advances by Seller.
The
Seller shall have no obligation to advance any amounts constituting delinquent
principal and interest payments.
ARTICLE
IV
GENERAL
SERVICING PROCEDURES
Section
4.01 Transfers
of Mortgaged Property.
The
Seller shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Seller shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided, however, that the Seller shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or threaten
to impair any recovery under the related PMI Policy or LPMI Policy, if
any.
If
the
Seller reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Seller shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Seller
is unable under applicable law to require that the original Mortgagor remain
liable under the Mortgage Note and the Seller has the prior consent of the
primary mortgage guaranty insurer, a substitution of liability agreement
with
the purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Seller for entering into an assumption
agreement, a portion of such fee, up to an amount equal to one-half of one
percent (0.5%) of the outstanding principal balance of the related Mortgage
Loan, will be retained by the Seller as additional servicing compensation,
and
any portion thereof in excess of one-half of one percent (0.5%) shall be
deposited in the Custodial Account for the benefit of the Purchaser. In
connection with any such assumption, neither the Mortgage Interest Rate borne
by
the related Mortgage Note, the term of the Mortgage Loan nor the outstanding
principal amount of the Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Seller shall inquire diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used by ▇▇▇▇▇▇ ▇▇▇ with respect to underwriting mortgage loans of the
same
type as the Mortgage Loans. If the credit of the proposed transferee does
not
meet such underwriting criteria, the Seller diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
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Section
4.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon the
payment in full of any Mortgage Loan, or the receipt by the Seller of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Seller shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 3.02, and may request the release of any
Mortgage Loan Documents from the Purchaser in accordance with this
Section 4.02 hereof.
If
the
Seller satisfies or releases a Mortgage without first having obtained payment
in
full of the indebtedness secured by the Mortgage or should the Seller otherwise
prejudice any rights the Purchaser may have under the mortgage instruments,
upon
written demand of the Purchaser, the Seller shall repurchase the related
Mortgage Loan at the Repurchase Price by deposit thereof in the Custodial
Account within 2 Business Days of receipt of such demand by the Purchaser.
The
Seller shall maintain the Fidelity Bond and Errors and Omissions Insurance
Policy as provided for in Section 2.13 insuring the Seller against any loss
it may sustain with respect to any Mortgage Loan not satisfied in accordance
with the procedures set forth herein.
Section
4.03 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans during the period from the
related Closing Date up to but not including the related Transfer Date, the
Seller shall retain a Servicing Fee with respect to each Mortgage Loan in
the
amount of $7.00 per month, which amount shall be prorated for any portion
of a
month during which the Mortgage Loan is serviced by the Seller pursuant to
this
Agreement. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Condemnation Proceeds
or
Liquidation Proceeds, to the extent permitted by Section 2.02), of such
Monthly Payment collected by the Seller, or as otherwise provided under
Section 2.03.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 4.01, shall be retained by the Seller to the extent not required to
be deposited in the Custodial Account. The Seller shall be required to pay
all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement thereof except as specifically
provided for herein.
Section
4.04 Annual
Statement as to Compliance.
The
Seller shall deliver to the Purchaser and any Depositor, on or before March
1 of
each calendar year, commencing in 2007, and on the Transfer Date a statement
of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Seller, to the effect that (i) a review of the
Seller’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and
any
applicable Reconstitution Agreement during such period has been made under
such
officer’s supervision, and (ii) to the best of such officers’ knowledge, based
on such review, the Seller has fulfilled all of its obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there
has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the
nature
and the status thereof.
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Section
4.05 Assessment
of Servicing Compliance.
(i) On
or before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(A) deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Seller’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Seller, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 8 hereto delivered to
the
Purchaser concurrently with the execution of this Agreement;
(B) deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Seller and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act and
the Exchange Act;
(C) cause
each Subservicer and each Subcontractor determined by the Seller pursuant
to
Section 4.07 to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB (each, a “Participating Entity”), to deliver to
the Purchaser and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (i) and (ii) of this Section
4.05; and
(D) if
requested by the Purchaser or any Depositor not later than February 1 of
the
calendar year in which such certification is to be delivered, deliver to
the
Purchaser, any Depositor and any other Person that will be responsible for
signing the certification (a “Sarbanes Certification”) required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed issuer with respect
to
a Securitization Transaction a certification in the form attached hereto
as
Exhibit 7.
The
Seller acknowledges that the parties identified in clause (i)(D) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (i)(D) above unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(ii)
Each
assessment of compliance provided by a Subservicer pursuant to Section
4.05(i)(A) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 8 hereto delivered to
the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to
Section 4.05(i)(C) need not address any elements of the Servicing Criteria
other
than those specified by the Seller pursuant to Section 4.07.
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Section
4.06 Right
to Examine Seller Records.
(a) The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Seller, whether held by the Seller or
by
another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance
notice.
(b) The
Seller shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including without limitation the Office of Thrift Supervision
(or any
successor thereto), the FDIC and other similar entities, access to any
documentation regarding the Mortgage Loans in the possession of the Seller
that
is required by any applicable regulations. Such access shall be afforded
without
charge, upon reasonable request, during normal business hours, at the offices
of
the Seller and in accordance with any applicable regulations.
Section
4.07 Use
of
Subservicers and Subcontractors.
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement (a) without the prior written consent of the
Purchaser and (b) unless the Seller complies with the provisions of paragraph
(i) of this Section. The Seller shall not hire or otherwise utilize the services
of any Subcontractor, and shall not permit any Subservicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the obligations
of
the Seller as servicer under this Agreement or any Reconstitution Agreement
(a)
without the prior written consent of the Purchaser and (b) unless the Seller
complies with the provisions of paragraph (ii) of this Section.
(i) The
Seller shall cause any Subservicer used by the Seller (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section and with Sections 3.02(b)(ii), 3.02(b)(iv), 4.04, 4.05, 6.04,
8.01(b) and 10.08 of this Agreement to the same extent as if such Subservicer
were the Seller, and to provide the information required with respect to
such
Subservicer under Section 3.02(b)(iii) of this Agreement. The Seller shall
be
responsible for obtaining from each Subservicer and delivering to the Purchaser
and any Depositor any servicer compliance statement required to be delivered
by
such Subservicer under Section 4.04, any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 4.05
and
any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 4.05 as
and
when required to be delivered.
(ii) The
Seller shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator)
a
written description (in form and substance satisfactory to the Purchaser
and
such Depositor) of the role and function of each Subcontractor utilized by
the
Seller or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the Servicing Criteria will be addressed
in
assessments of compliance provided by each Subcontractor identified pursuant
to
clause (B) of this paragraph.
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As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Seller shall cause any such Subcontractor used by the
Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Sections 4.05, 6.04 and 8.01(b) of this Agreement
to the same extent as if such Subcontractor were the Seller. The Seller shall
be
responsible for obtaining from each Subcontractor and delivering to the
Purchaser and any Depositor any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 4.05, in each
case
as and when required to be delivered.
The
Seller acknowledges that a Subservicer or Subcontractor that performs services
with respect to mortgage loans involved in a Securitization Transaction in
addition to the Mortgage Loans may be determined by a Depositor to be a
Participating Entity on the basis of the aggregate balance of such mortgage
loans, without regard to whether such Subservicer or Subcontractor would
be a
Participating Entity with respect to the Mortgage Loans viewed in isolation.
The
Seller shall (A) respond as promptly as practicable to any good faith request
by
the Purchaser or any Depositor for information regarding each Subservicer
and
each Subcontractor and (B) cause each Subservicer and each Subcontractor
with
respect to which the Purchaser or any Depositor requests delivery of an
assessment of compliance and accountants’ attestation to deliver such within the
time required under Section 4.05.
For
purposes of this Agreement, the Seller shall be deemed to have received payments
on Mortgage Loans immediately upon receipt by a subservicer of such payments.
Notwithstanding any subservicing agreement or the provisions of this Agreement
relating to agreements or arrangements between the Seller and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Seller
shall
remain obligated and primarily liable to the Purchaser for servicing and
administering of the Mortgage Loans in accordance with the provisions hereof
without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification from
a
Subservicer and to the same extent and under the same terms and conditions
as if
the Seller alone were servicing and administering the Mortgage Loans. All
actions of each Subservicer performed pursuant to the related subservicing
agreement shall be performed as an agent of the Seller with the same force
and
effect as if performed directly by the Seller and the Purchaser shall have
no
obligations, duties or liabilities with respect to any subservicer including
no
obligation, duty or liability of the Purchaser to pay any subservicer’s fees and
expenses. The Seller shall be entitled to enter into any agreement with each
subservicer for indemnification of the Seller by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
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ARTICLE
V
INTERIM
SERVICER TO COOPERATE
Section
5.01 Provision
of Information.
During
the term of this Agreement, the Seller shall furnish to the Purchaser such
periodic, special, or other reports or information, whether or not provided
for
herein, as shall be necessary, reasonable, or appropriate with respect to
the
Purchaser or the purposes of this Agreement. All such reports or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Purchaser may give.
The
Seller shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
5.02 Financial
Statements; Servicing Facilities.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the
Seller
for the most recently completed three fiscal years for which such a statement
is
available, as well as a Consolidated Statement of Condition at the end of
the
last two fiscal years covered by such Consolidated Statement of Operations.
The
Seller also shall make available any comparable interim statements to the
extent
any such statements
have been prepared by or on behalf of the Seller (and are available upon
request
to members or stockholders of the Seller or to the public at large). If it
has
not already done so, the Seller shall furnish promptly to the Purchaser copies
of the statement specified above.
The
Seller shall make available to the Purchaser or any prospective Purchaser
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Seller or the financial
statements of the Seller, and to permit any prospective Purchaser to inspect
the
Seller’s servicing facilities for the purpose of satisfying such prospective
Purchaser that the Seller have the ability to service the Mortgage Loans
as
provided in this Agreement.
Section
5.03 Securitization
Transaction.
The
Purchaser and the Seller acknowledge and agree that the purpose of Sections
3.02(b), 4.04, 4.05, 4.07, 5.03, 6.04, 8.01(b) and 10.08 of this Agreement
is to
facilitate compliance by the Purchaser and any Depositor with the provisions
of
Regulation AB and related rules and regulations of the Commission. Although
Regulation AB is applicable by its terms only to offerings of asset-backed
securities that are registered under the Securities Act, the Seller acknowledges
that investors in privately offered securities may require that the Purchaser
or
any Depositor provide comparable disclosure in unregistered offerings.
References in this Agreement to compliance with Regulation AB include provision
of comparable disclosure in private offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required
under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise,
and
agrees to comply with requests made by the Purchaser or any Depositor in
good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Seller shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor
to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Subservicer and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to
be necessary in order to effect such compliance.
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The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Seller by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB. In addition,
any notice or request that must be “in writing” or “written” may be made in
mutually acceptable electronic format.
The
Purchaser shall indemnify the Seller and its Affiliates and the respective
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments,
and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon (1) any untrue statement of a material fact contained or alleged
to be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum, any
offering circular, any computational materials, and any amendments or
supplements to the foregoing (collectively, the “Securitization Materials”) or
(2) the omission or alleged omission to state in the Securitization Materials
a
material fact required to be stated in the Securitization Materials or necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission is
other
than a statement or omission arising out of, resulting from, or based upon
the
Seller Information.
ARTICLE
VI
TERMINATION
Section
6.01 Damages.
The
Purchaser shall have the right at any time to seek and recover from the Seller
any damages or losses suffered by it as a result of any failure by the Seller
to
observe or perform any duties, obligations, covenants or agreements herein
contained.
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Section
6.02 Termination
Upon Transfer of Servicing.
(a) Termination
Procedures.
. This
Agreement shall terminate with respect to the Mortgage Loans or portion thereof
transferred
on the related Transfer Date as set forth in the related Purchase Price and
Terms Letter.
The
Purchaser may elect to terminate this Agreement and transfer the servicing
from
the Seller prior to the related Transfer Date with respect to all or any
portion
of the Mortgage Loans by providing written notice to the Seller at least
10
Business Days prior to the date on which it intends to transfer the servicing
of
its intent to transfer the servicing from the Seller. On or before the date
specified by the Purchaser in accordance with this paragraph (a) for the
transfer of servicing from the Seller, the Seller shall prepare, execute
and
deliver to the successor entity designated by the Purchaser any and all
documents and other instruments, place in such successor’s possession all
Mortgage Loan Documents necessary or appropriate to effect the purposes of
such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Seller’s sole
expense. The Seller shall cooperate with the Purchaser and such successor
in
effecting the termination of the Seller’s responsibilities and rights
hereunder.
On
the
related Transfer Date, the Seller shall comply with all of the provisions
of
Section 5 of the Purchase Agreement to effect a complete transfer of the
Servicing Rights. On the related Transfer Date for each Mortgage Loan, this
Agreement, except for Articles VI, VIII, IX and X which shall survive the
related Transfer Date, shall terminate.
(b) Mortgage
Loans in Foreclosure.
The
servicing with respect to Mortgage Loans in foreclosure on or before the
related
Transfer Date shall not be transferred from the Seller to the Purchaser or
the
successor servicer, as the case may be, and such Mortgage Loans shall continue
to be serviced by the Seller pursuant to the terms of this Agreement. However,
if the Purchaser so elects, the Purchaser may waive the provisions of this
paragraph (b) and accept transfer of servicing of such Mortgage Loans and
all
amounts received by the Seller thereunder.
(c) Servicing
Advances.
Notwithstanding the fact that the related Transfer Date has occurred, the
Seller
shall not be reimbursed for any Servicing Advances with respect to any Mortgage
Loan until the Seller or the successor servicer receives a Monthly Payment
or
Liquidation Proceeds with respect to such Mortgage Loan. At such time, the
Seller shall be entitled to be reimbursed for all unreimbursed Servicing
Advances with respect to such Mortgage Loan on a first priority basis (but
subject to any successor servicer’s rights to reimbursement with respect to
Servicing Advances) from the Monthly Payment or Liquidation Proceeds received
with respect to such Mortgage Loan. This Section 6.03(c) shall survive the
related Transfer Date.
(d) Additional
Termination Provisions.
Notwithstanding and in addition to the foregoing, in the event that (i) a
Mortgage Loan becomes delinquent for a period of 120 days or more (a
“Delinquent
Mortgage Loan”)
or
(ii) a Mortgage Loan becomes an REO Property, the Purchaser may at its
election terminate this Agreement with respect to such Delinquent Mortgage
Loan
or REO Property, upon 15 days’ written notice to the Seller.
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Section
6.03 Pass
Through Transfer.
(a) The
Purchaser may enter into one or more Securitization Transactions, in each
case
temporarily retaining the Seller as the servicer thereof. The date on which
any
Mortgage Loans are included in a Securitization Transaction shall be a
“Reconstitution
Date”.
On any
Reconstitution Date, the Mortgage Loans transferred shall cease to be covered
by
the Interim Servicing Agreement.
(b) The
Seller shall cooperate with the Purchaser in connection with any Securitization
Transaction contemplated by the Purchaser pursuant to this Section 28. In
that
connection, the Seller shall (a) execute any agreements related to any
Securitization Transactions (“Reconstitution Agreements”) within a reasonable
period of time after receipt of any Reconstitution Agreement which time shall
be
sufficient for the Seller and Seller’s counsel to review such Reconstitution
Agreement, but such time shall not exceed ten (10) Business Days after such
receipt, and (b) provide to the trustee or a third party purchaser, as the
case
may be, subject to any Reconstitution Agreement and/or the Purchaser: (i)
any
and all information and appropriate verification of information which may
be
reasonably available to the Seller, whether through letters of its auditors
(the
reasonable out-of-pocket cost of which will be borne by the Purchaser) and
counsel or otherwise, as the Purchaser shall reasonably request; (ii) to
bring
each of the Mortgage Loan representations and warranties set forth in the
Agreement current as of the date the Mortgage Loans are being transferred
pursuant to a Securitization Transaction, provided that, such Mortgage Loan
representations and warranties shall be revised, to the extent allowed or
required by the rating agencies and the certificate insurer and acceptable
to
the Purchaser, to reflect the actual pool of Mortgage Loans being securitized;
notwithstanding the foregoing, Seller shall, at the time of reconstitution,
be
entitled to state certain exceptions to the Mortgage Loan representations
and
warranties necessary to make same true and correct as of the time of the
Securitization Transaction and (iii) such additional representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Seller as are reasonably
believed necessary by the trustee, such third party purchaser, any master
servicer, any rating agency or the Purchaser, as the case may be, in connection
with such transactions; provided, however, that these items shall not be
more
onerous than such similar items set forth herein.
(c) In
the
event the Purchaser has elected to have the Seller hold record title to the
Mortgages, prior to a Reconstitution Date the Seller or its designee shall
prepare an assignment of mortgage in blank from the Seller, acceptable to
the
trustee or such third party, as the case may be, for each Mortgage Loan that
is
part of a Securitization Transaction and shall pay all preparation and recording
costs associated therewith. The Seller shall execute each assignment of
mortgage, track such assignments of mortgage to ensure they have been recorded
and deliver them as required by the trustee or such third party, as the case
may
be, upon the Seller’s receipt thereof, provided, that the Seller need not record
an assignment of mortgage if, at the sole option of the Purchaser, the Seller
delivers an opinion of counsel in the applicable jurisdiction that it is
not
necessary to record the assignment of mortgage to protect the Purchaser’s
interest. Additionally, the Seller shall prepare and execute, at the direction
of the Purchaser, any Mortgage Note endorsements in connection with any and
all
Reconstitution Agreements.
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(d) The
Reconstitution Agreement will require the Seller to advance principal and
interest payments on each Mortgage Loan at the Mortgage Loan Interest Rate
less
the Reconstituted Servicing Fee (defined below) on the remittance date of
the
Reconstitution Agreement. The Reconstitution Agreement will also require
in
connection with any prepayments, in addition to any prepayment penalties
received by the Seller on the prepaid Mortgage Loan, the Seller shall contribute
from its own funds to the extent that such contributions do not exceed the
Reconstituted Servicing Fee, payable to the Seller for such prior month,
any
shortfall in the interest component thereof, such that one month’s interest
shall be deposited in the Custodial Account, (as defined in the Interim
Servicing Agreement), prior to the remittance date of the Reconstitution
Agreement. The Seller’s obligation to remit payments of principal and interest
shall continue through the liquidation of the Mortgaged Property on the related
Mortgage Loan, or until such time that the Seller deems that any future advances
of principal and interest would be otherwise non-recoverable. The Reconstituted
Servicing Fee shall be .25% per annum times the outstanding principal balance
of
the Mortgage Loans included in the respective Securitization
Transaction.
(e) The
Seller shall do all things necessary and required by a servicer who services
Mortgage Loans under a Securitization Transaction which is a REMIC (defined
as a
“real estate mortgage conduit” within the meaning Section 860D of the Internal
Revenue Code of 1986, as it may be amended from time to time).
(f) All
Mortgage Loans not sold or transferred pursuant to a Securitization Transaction
and any Mortgage Loans repurchased by the Purchaser, shall be subject to
the
Interim Servicing Agreement and shall continue to be serviced in accordance
with
the terms of the Interim Servicing Agreement and with respect thereto the
Interim Servicing Agreement shall remain in full force and effect.
Section
6.04 Additional
Termination Provisions.
ii)
Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, or any breach by the Seller of a
representation or warranty set forth in Section 10.08(a) or in a writing
furnished pursuant to Section 10.08(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such
breach is not cured by such closing date, or any breach by the Seller of
a
representation or warranty in a writing furnished pursuant to Section 10.08(b)
to the extent made as of a date subsequent to such closing date, shall, except
as provided in clause (b) of this paragraph, immediately and automatically,
without notice or grace period, constitute an Event of Default with respect
to
the Seller under this Agreement and any applicable Reconstitution Agreement,
and
shall entitle the Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Seller; provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
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(b) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 4.04 or 4.05, including (except as provided below) any failure
by
the Seller to identify pursuant to Section 4.07 any Subcontractor “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB,
which continues unremedied for ten calendar days after the date on which
such
information, report, certification or accountants’ letter was required to be
delivered shall constitute an Event of Default with respect to the Seller
under
this Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Seller as servicer under this Agreement
and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Seller;
provided
that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Seller as servicer, such provision
shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights
and
obligations of the Seller pursuant to this subparagraph (ii)(B) if a failure
of
the Seller to identify a Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely
to the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(c) The
Seller shall promptly reimburse the Purchaser (or any designee of the Purchaser,
such as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such Depositor as
such
are incurred, in connection with the termination of the Seller as servicer
and
the transfer of servicing of the Mortgage Loans to a successor servicer.
The
provisions of this paragraph shall not limit whatever rights the Purchaser
or
any Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at
law,
such as an action for damages, specific performance or injunctive
relief.
ARTICLE
VII
BOOKS
AND RECORDS
Section
7.01 Possession
of Servicing Files Prior to the Transfer Date.
Prior to
the related Transfer Date, the contents of each Servicing File are and shall
be
held in trust by the Seller for the benefit of the Purchaser as the owner
thereof. The Seller shall maintain in the Servicing File a copy of the contents
of each Mortgage File and the originals of the documents in each Mortgage
File
not delivered to the Purchaser. The possession of the Servicing File by the
Seller is at the will of the Purchaser for the sole purpose of servicing
the related Mortgage Loan, pursuant to this Agreement, and such retention
and
possession by the Seller is in its capacity as Servicer only and at the election
of the Purchaser. The Seller shall release its custody of the contents of
any
Servicing File only in accordance with written instructions from the Purchaser,
unless such release is required as incidental to the Seller’s servicing of the
Mortgage Loans pursuant to this Agreement, or is in connection with a repurchase
of any Mortgage Loan pursuant to the terms of the Purchase
Agreement.
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The
Seller shall be responsible for maintaining, and shall maintain, a complete
set
of books and records for each Mortgage Loan which shall be marked clearly
to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
the
Seller shall maintain in its possession, available for inspection by the
Purchaser or its designee, and shall deliver to the Purchaser or its designee
upon demand, evidence of compliance with all federal, state and local laws,
rules and regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including
but not limited to documentation as to the method used in determining the
applicability of the provisions of the Flood Disaster Protection Act of 1973,
as
amended, to the Mortgaged Property, documentation evidencing insurance coverage
and eligibility of any condominium project for approval by ▇▇▇▇▇▇ Mae and
periodic inspection reports as required by Section 2.14.
The
Seller shall keep at its servicing office books and records in which, subject
to
such reasonable regulations as it may prescribe, the Seller shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Seller shall be under no obligation to deal with any person
with
respect to this Agreement or the Mortgage Loans unless the books and records
show such person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell or transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Seller of the transfer. Upon receipt
of notice of the transfer, the Seller shall ▇▇▇▇ its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred.
ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
Section
8.01 Indemnification. iii)
The
Seller agrees to indemnify the Purchaser and hold it harmless against any
and
all claims, losses, damages, penalties, fines, and forfeitures, including,
but
not limited to reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Purchaser may sustain in
any way
related to the failure of Seller to (a) perform its duties and service the
Mortgage Loans in strict compliance with the terms of this Agreement and/or
(b)
comply with applicable law. The Seller immediately shall notify the Purchaser
if
a claim is made by a third party with respect to this Agreement, assume (with
the prior written consent of the Purchaser) the defense of any such claim
and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or the Purchaser in respect of such claim. The Seller shall follow any
written instructions received from the Purchaser in connection with such
claim.
The Purchaser promptly shall reimburse the Seller for all amounts advanced
by it
pursuant to the preceding sentence except when the claim is in any way related
to the Seller’s indemnification pursuant to Section 8 of the Purchase Agreement,
or the failure of the Seller to (a) service and administer the Mortgage Loans
in
strict compliance with the terms of this Agreement and/or (b) comply with
applicable law.
(b) The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial Purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of
the
Depositor, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them
may
sustain arising out of or based upon:
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(A) (1)
any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, accountants’ letter or other material
provided under this Agreement by or on behalf of the Seller, or provided
in
written or electronic form under this Agreement by or on behalf of any
Subservicer or Subcontractor (collectively, the “Seller Information”), or (2)
the omission or alleged omission to state in the Seller Information a material
fact required to be stated in the Seller Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
by way of clarification,
that
clause (2) of this paragraph shall be construed solely by reference to the
Seller Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
(B) any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, including any failure by the Seller
to
identify pursuant to Section 4.07(ii) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB;
or
(C) any
breach by the Seller of a representation or warranty set forth in Section
10.08(a) or in a writing furnished pursuant to Section 10.08(b) and made
as of a
date prior to the closing date of the related Securitization Transaction,
to the
extent that such breach is not cured by such closing date, or any breach
by the
Seller of a representation or warranty in a writing furnished pursuant to
Section 10.08(b) to the extent made as of a date subsequent to such closing
date.
In
the
case of any failure of performance described in clause (B) of this Section
8.01(b), the Seller shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or
filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller, any Subservicer
or
any Subcontractor.
Section
8.02 Limitation
on Liability of Seller and Others.
Neither
the Seller nor any of the directors, officers, employees or agents of the
Seller
shall be under any liability to the Purchaser for any action taken or for
refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment, provided, however, that this
provision shall not protect the Seller or any such person against any breach
of
warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions
of this
Agreement. The Seller and any director, officer, employee or agent of the
Seller
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
Seller
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage loans
in
accordance with this Agreement and
which
in its opinion may involve it in any expense or liability, provided, however,
that the Seller may, with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable in respect to this Agreement
and
the rights and duties of the parties hereto. In such event, the Seller shall
be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
-36-
Section
8.03 Limitation
on Resignation and Assignment by Seller.
The
Purchaser has entered into this Agreement with the Seller and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Seller, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Seller shall neither assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, which consent shall be granted
or
withheld in the sole discretion of the Purchaser.
The
Seller shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Seller’s responsibilities and obligations hereunder in the manner provided in
Section 6.02.
Without
in any way limiting the generality of this Section 8.03, in the event that
the Seller either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell
or
otherwise dispose of all or substantially all of its property or assets,
without
the prior written consent of the Purchaser, then the Purchaser shall have
the
right to terminate this Agreement upon notice given as set forth in
Section 6.03, without any payment of any penalty or damages and without any
liability whatsoever to the Seller or any third party.
Section
8.04 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Seller but subject
to
the limit set forth in Section 2.01 hereof, to assign, in whole or in part,
its interest under this Agreement with respect to some or all of the Mortgage
Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing
an Assignment and Assumption Agreement substantially in the form of Exhibit
H to
the Purchase Agreement. Upon such assignment of rights and assumption of
obligations, the assignee
or designee shall accede to the rights and obligations hereunder of the
Purchaser with respect to such Mortgage Loans and the Purchaser as assignor
shall be released from all obligations hereunder with respect to such Mortgage
Loans from and after the date of such assignment and assumption. All references
to the Purchaser in this Agreement shall be deemed to include its assignee
or
designee.
-37-
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
The
Purchaser warrants and represents to, and covenants and agrees with, the
Seller
as follows:
Section
9.01 Authority
and Capacity.
The
execution, delivery and performance by the Purchaser of this Agreement has
been
and will remain duly and validly authorized by all necessary corporate action.
This Agreement constitutes and will continue to constitute a legal, valid
and
enforceable obligation of the Purchaser.
Section
9.02 Assistance.
To the
extent possible, the Purchaser shall cooperate with and assist the Seller
as
requested by the Seller, in carrying out Seller’s covenants, agreements duties
and responsibilities under the Purchase Agreement and in connection therewith
shall execute and deliver all such papers, documents and instruments as may
be
necessary and appropriate in furtherance thereof.
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES OF INTERIM SERVICER
The
Seller warrants and represents to, and covenants and agrees with, the Purchaser
as follows:
Section
10.01 Due
Organization and Authority.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of California and has all licenses necessary
to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in each state where a Mortgaged Property is located if the
laws of
such state require licensing or qualification in order to conduct business
of
the type conducted by the Seller, and in any event the Seller is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan in accordance with the terms
of this
Agreement; the Seller has the full corporate power and authority to execute
and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments or
transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Seller; and all requisite corporate action
has been taken by the Seller to make this Agreement valid and binding upon
the
Seller in accordance with its terms;
-38-
Section
10.02 Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller;
Section
10.03 No
Conflicts.
Neither
the execution and delivery of this Agreement, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict
with
or result in a breach of any of the terms, conditions or provisions of the
Seller’s charter or by-laws or any legal restriction or any agreement or
instrument to which the
Seller is now a party or by which it is bound, or constitute a default or
result
in an acceleration under any of the foregoing, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which the Seller or its
property is subject, or impair the ability of the Purchaser to realize on
the
Mortgage Loans, or impair the value of the Mortgage Loans;
Section
10.04 Ability
to Service.
The
Seller is an approved Seller/servicer of conventional residential mortgage
loans
for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same
type
as the Mortgage Loans. The Seller is in good standing to sell mortgage loans
to
and service mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make the Seller unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac;
Section
10.05 Ability
to Perform.
The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
Section
10.06 No
Litigation Pending.
There is
no action, suit, proceeding or investigation pending or threatened against
the
Seller which, either in any one instance or in the aggregate, may result
in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material impairment
of
the right or ability of the Seller to carry on its business substantially
as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans
or
of any action taken or to be taken in connection with the obligations of
the
Seller contemplated herein, or which would be likely to impair materially
the
ability of the Seller to perform under the terms of this Agreement;
Section
10.07 No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of or
compliance by the Seller with this Agreement or the Servicing of the Mortgage
Loans as evidenced by the consummation of the transactions contemplated by
this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
Section
10.08 No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection
with the transactions contemplated hereby contains any untrue statement of
fact
or omits to state a fact necessary to make the statements contained therein
not
misleading.
-39-
Section
10.09 Additional
Representations and Warranties.
iv)
The
Seller shall be deemed to represent to the Purchaser and to any Depositor,
as of
the date on which information is first provided to the Purchaser or any
Depositor under Section 3.02(b) that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i)
the Seller is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Seller; (ii) the
Seller has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Seller as servicer
has been disclosed or reported by the Seller; (iv) no material
changes to the Seller’s policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution Agreement
for mortgage loans of a type similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Seller’s financial
condition that could have a material adverse effect on the performance by
the
Seller of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller or any Subservicer;
and (vii) there are no affiliations, relationships or transactions relating
to
the Seller or any Subservicer with respect to any Securitization Transaction
and
any party thereto identified by the related Depositor of a type described
in
Item 1119 of Regulation AB.
(b) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Section 3.02(b), the Seller shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (b) of this Section 10.08 or, if any such representation
and warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
ARTICLE
XI
DEFAULT
Section
11.01 Events
of Default.
The
following shall constitute an Event of Default under this Agreement on the
part
of the Seller:
(a) any
failure by the Seller to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period
of
five days after the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Seller by the Purchaser;
or
(b) the
failure by the Seller duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Seller set forth
in this
Agreement which continues unremedied for a period of 30 days after the date
on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Seller by the Purchaser; provided, however, that any
notice, grace period or other remedy period with respect to the failure by
the
Seller duly to observe or perform any of the covenants or agreements herein
related to Regulation AB shall be set forth solely in Section 6.04;
or
-40-
(c) 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, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Seller and such decree or order shall have remained
in
force undischarged or unstayed for a period of 60 days; or
(d) the
Seller shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Seller or of or
relating to all or substantially all of its property; or
(e) the
Seller 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
(f) the
Seller ceases to meet the qualifications of a ▇▇▇▇▇▇ ▇▇▇ servicer;
or
(g) the
Seller fails to maintain a minimum net worth of $25,000,000; or
(h) the
Seller attempts to assign its right to servicing compensation hereunder or
the
Seller attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatever rights the Purchaser may have at law or
equity
to damages, including injunctive relief and specific performance, the Purchaser,
by notice in writing to the Seller, may terminate all the rights and obligations
of the Seller under this Agreement and in and to the Mortgage Loans and the
proceeds thereof.
Upon
receipt by the Seller of such written notice, all authority and power of
the
Seller under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 6.03.
Section
11.02 Waiver
of Defaults.
By a
written notice, the Purchaser may waive any default by the Seller in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived.
-41-
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall
be
deemed to have been duly given upon the delivery or mailing thereof, as the
case
may be, sent by registered or certified mail, return receipt
requested:
(a) If
to
Purchaser to:
▇▇▇▇▇▇
Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Contract Finance
(b) If
to
Seller to:
GreenPoint
Mortgage Funding Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
Section
12.02 Waivers.
Either
the Seller or Purchaser may upon consent of all parties, by written notice
to
the others:
(a) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the others hereunder; and
(b) Waive
or
modify performance of any of the obligations of the others
hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement
shall
not operate or be construed as a waiver of any other subsequent
breach.
Section
12.03 Entire
Agreement; Amendment.
This
Agreement and the Purchase Agreement constitute the entire agreement between
the
parties with respect to servicing of the Mortgages during the Interim Period.
This Agreement may be amended and any provision hereof waived, but, only
in
writing signed by the party against whom such enforcement is
sought.
Section
12.04 Execution;
Binding Effect.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement. Subject to
Section 8.03, this Agreement shall inure to the benefit of and be binding
upon the Seller and the Purchaser and their respective successors and
assigns.
-42-
Section
12.05 Headings.
Headings
of the Articles and Sections in this Agreement are for reference purposes
only
and shall not be deemed to have any substantive effect.
Section
12.06 Applicable
Law. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
12.07 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or
joint
venture between the parties. The duties and responsibilities of the Seller
shall
be rendered by them as independent contractors and not as an agent of Purchaser.
The Seller shall have full control of all of its acts, doings, proceedings,
relating to or requisite in connection with the discharge of its duties and
responsibilities under this Agreement.
Section
12.08 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from
the
remaining covenants, agreements, provisions or terms of this Agreement and
shall
in no way affect the validity or enforceability of the other provisions of
this
Agreement.
Section
12.09 Recordation
of Assignments of Mortgage.
To the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at
the
Seller’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
Section
12.10 Appointment
of Master Servicer.
The
Purchaser may, in its sole discretion from time to time, engage a master
servicer (the “Master Servicer”) to assist the Purchaser in the supervision of
the performance by the Seller of its obligations and responsibilities arising
under this Agreement. In the event that the Purchaser so appoints a Master
Servicer, the Purchaser shall provide written notice thereof to the Seller.
From
the date of such notice until such time as the Seller receives written notice
from the Purchaser that it has terminated or replaced such Master Servicer,
the
Seller shall deliver all notices, reports and remittances that the Seller
is
obligated to deliver to the Purchaser under this Agreement directly to the
Master Servicer named in such notice (or to any successor master servicer
named
in any subsequent written notice received from the Purchaser). The Master
Servicer, acting on behalf of the Purchaser, shall have the benefit of the
covenants and agreements of the Seller under this Agreement and the Master
Servicer, acting on behalf of the Purchaser, shall have the same rights as
the
Purchaser to enforce the obligations of the Seller arising under this Agreement.
The Master Servicer shall be entitled to terminate the rights and obligations
of
the Seller under this Agreement upon the occurrence of an Event of Default
as
provided in this Agreement. Notwithstanding anything herein to the contrary,
in
no event shall the Master Servicer assume any of the obligations of the
Purchaser under this Agreement; and in connection with the performance of
the
Master Servicer’s duties hereunder the Seller agrees that the Master Servicer
shall be entitled to all of the rights, protections, indemnities and limitations
of liability afforded to the Purchaser under this Agreement. The Purchaser
hereby appoints Aurora Loan Services LLC as its initial Master Servicer
hereunder.
-43-
Section
12.11 Protection
of Confidential Information.
The
Seller shall keep confidential and shall not divulge to any party, without
the
Purchaser’s prior written consent, the Purchase Price paid by the Purchaser for
any Mortgage Loan or Mortgage Loan Package, except to the extent that it
is
appropriate for the Seller to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
The
Seller hereby acknowledges that the Purchaser is subject to the privacy
regulations under Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, 15 U.S.C. § 6801 et
seq., pursuant to which regulations the Purchaser is required to obtain certain
undertakings from the Seller with regard to the privacy, use and protection
of
nonpublic personal financial information of the Mortgagors. Therefore,
notwithstanding anything to the contrary contained in this Agreement, the
Seller
agrees that (a) it shall not disclose or use any personally identifiable
information relating to a mortgagor (as defined below, “Customer Information”)
except to the extent necessary to carry out its obligations under this Agreement
and for no other purpose, (b) it shall not disclose Customer Information
to any
third party, including, without limitation, its third party service providers
without the prior consent of the Purchaser and an agreement in writing from
the
third party to use or disclose such Customer Information only to the extent
necessary to carry out the Seller's obligations under this Agreement and
for no
other purposes, (c) it shall maintain, and shall require all third parties
approved under subsection (b) to maintain, effective information security
measures to protect Customer Information from unauthorized disclosure or
use,
and (d) it shall provide the Purchaser with information regarding such security
measures upon the reasonable request of the Purchaser and promptly provide
the
Purchaser with information regarding any failure of such security measures
or
any security breach related to Customer Information. The obligations set
forth
in this Section shall survive termination of the Agreement. For the purposes
of
this Agreement, “Customer Information” means the nonpublic personal information
(as defined in 15 U.S.C. § 6809(4)) of the Purchaser's employees, clients or
prospective clients, including the Mortgagors (and/or clients or prospective
clients of the Purchaser's parent, affiliated or subsidiary companies) received
by the Seller in connection with the performance of its obligations under
the
Agreement, including, but not limited to (i) an individual's name, address,
e-mail address, IP address, telephone number and/or social security number,
(ii)
the fact that an individual has a relationship with the Purchaser and/or
its
parent, affiliated or subsidiary companies, or (iii) an individual's account
information to the extent Nonpublic Personal Information (as defined) is,
either
intentionally or unintentionally, disclosed to or obtained by the Seller
during
the Agreement. The Seller covenants to keep such Nonpublic Personal Information
strictly confidential and to strictly limit its use of such information to
carrying out the services set forth herein. For the purposes of this provision,
the term “Nonpublic Personal Information” is defined as any non-public
personally identifiable financial information of an individual, including
but
not limited to the Mortgagors or the Purchaser’s clients or
employees.
-44-
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal as of
the
date and year first above written.
▇▇▇▇▇▇
CAPITAL, A DIVISION OF
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
(Purchaser)
By:_________________________
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Authorized Signatory
GREENPOINT
MORTGAGE FUNDING, INC.
(Seller)
By:_________________________
Name:
Title:
-45-
EXHIBIT
1-1
FORM
OF MONTHLY REMITTANCE ADVICE
|
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
|
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED
|
||
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED,
.00 IF NO COLLECTIONS
|
||
|
CURT1
|
CURTAILMENT
1 ▇▇▇▇▇▇, .▇▇ IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2
|
CURTAILMENT
2 ▇▇▇▇▇▇, .▇▇ IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
|
.00
IF NOT APPLICABLE
|
||
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0700000 for 7.00%
|
||
|
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0025000 for .25%
|
||
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0675000 for 6.75%
|
||
|
PIPMT
|
P&I
CONSTANT, REQUIRED
|
Number
two decimals
|
|
.00
IF PAIDOFF
|
EXHIBIT
1-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
%
of
MI coverage
|
NUMBER(6,5)
|
|
|
The
percent of coverage provided by the PMI company in the event of
loss on a
defaulted loan.
|
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the claim was submitted to the PMI company.
|
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the bankruptcy petition is filed with the
court.
|
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
|
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure redemption period expires.
|
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
|
|
The
court assigned case number of the bankruptcy filed by a party with
interest in the property.
|
|
MI
claim amount paid
|
NUMBER(15,2)
|
|
|
The
amount paid to the servicer by the PMI company as a result of submitting
an MI claim.
|
1-2-1
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
|
Current
loan amount
|
NUMBER(10,2)
|
|
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the foreclosure sale is scheduled to be held.
|
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the dismissal or relief from stay order is entered by
the
bankruptcy court.
|
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of acceptance of an REO offer.
|
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of receipt of an REO offer.
|
|
Delinquency
value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure referral not
related to
loss mitigation activity.
|
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency valuation
amount.
|
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the delinquency valuation amount was completed by vendor or
property
management company.
|
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent but
is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
|
Foreclosure
flag
|
VARCHAR2(2)
|
Y=Active
foreclosure
|
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in
foreclosure
proceedings.
|
|
Corporate
expense balance
|
NUMBER(10,2)
|
|
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
|
|
Value
obtained during the foreclosure process. Usually as a result of
a BPO and
typically used to calculate the bid.
|
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that foreclosure valuation amount was completed by vendor or property
management company.
|
1-2-2
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure valuation
amount.
|
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
|
|
Number
that is assigned individually to the loan by either HUD or VA at
the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure sale was held.
|
|
Servicer
loan number
|
VARCHAR2(15)
|
|
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residentia
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of certain
types
of insurance (i.e.: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.).
|
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
|
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
|
Loss
mit flag
|
VARCHAR2(2)
|
Y=
Active loss mitigation
|
N=No
active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in
completing
a loss mitigation alternative.
|
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the mortgagor is denied loss mitigation alternatives
or the date
that the loss mitigation alternative is completed resulting in
a current
or liquidated loan.
|
1-2-3
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss mit
approval
date.
|
|
Loss
mit value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
|
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the loss mitigation valuation amount was completed by vendor
or
property management company.
|
|
MI
certificate number
|
VARCHAR2(15)
|
|
|
A
number that is assigned individually to the loan by the PMI company
at the
time of origination. Similar to the VA LGC/FHA Case Number in purpose.
|
|
LPMI
Cost
|
NUMBER(7,7)
|
|
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone is occupying
the property. Typically a result of a routine property
inspection.
|
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the most recent occupancy status was determined. Typically
the
date of the most recent property inspection.
|
|
Original
loan amount
|
NUMBER(10,2)
|
|
|
Amount
of the contractual obligations (i.e.: note and mortgage/deed of
trust).
|
|
Original
value amount
|
NUMBER(10,2)
|
|
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
|
Origination
date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the contractual obligations (i.e.: note and mortgage/deed
of trust)
of the mortgagor was executed.
|
1-2-4
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
|
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management company.
|
|
Property
type
|
VARCHAR2(2)
3=Condo
6=Prefabricated
7=Mobile
home
A=Church
O=Co-op
CT=Condotel
|
1=Single
family
4=Multifamily
B=Commercial
U=Unknown
P=PUD
M=Manufactured
housing
MU=Mixed
use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4 unit,
etc.
|
1-2-5
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
002=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
|
REO
repaired value
|
NUMBER(10,2)
|
|
|
The
projected value of the property that is adjusted from the "as is"
value
assuming necessary repairs have been made to the property as determined
by
the vendor/property management company.
|
|
REO
list price adjustment amount
|
NUMBER(15,2)
|
|
|
The
most recent listing/pricing amount as updated by the servicer for
REO
properties.
|
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
|
|
The
most recent date that the servicer advised the agent to make an
adjustment
to the REO listing price.
|
|
REO
value (as is)
|
NUMBER(10,2)
|
|
|
The
value of the property without making any repairs as determined
by the
vendor/property management company.
|
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the sale of the REO property closed
escrow.
|
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now Real
Estate
Owned.
|
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
|
|
The
initial/first date that the property was listed with an agent as
an
REO.
|
1-2-6
|
REO
original list price
|
NUMBER(15,2)
|
|
|
The
initial/first price that was used to list the property with an
agent as an
REO.
|
|
REO
net sales proceeds
|
NUMBER(10,2)
|
|
|
The
actual REO sales price less closing costs paid. The net sales proceeds
are
identified within the HUD1 settlement statement.
|
|
REO
sales price
|
NUMBER(10,2)
|
|
|
Actual
sales price agreed upon by both the purchaser and servicer as documented
on the HUD1 settlement statement.
|
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
|
REO
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the vendor or management company completed the valuation of
the
property resulting in the REO value (as is).
|
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value (as
is).
|
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
|
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
|
|
The
servicer defined date upon which the servicer considers that the
plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that both the mortgagor and servicer agree to the terms of
a
forbearance or repayment plan.
|
|
SBO
loan number
|
NUMBER(9)
|
|
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
|
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only).
|
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title approval was received as set forth in
the HUD
title approval letter.
|
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title package was submitted to either HUD
or
VA.
|
1-2-7
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that funds were received by the servicer from the VA
for the
expense claim submitted by the servicer.
|
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
|
VA
first funds received amount
|
NUMBER(15,2)
|
|
|
The
amount of funds received by the servicer from VA as a result of
the
specified bid.
|
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the funds from the specified bid were received by the
servicer
from the VA.
|
|
VA
▇▇▇ submitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
|
Zip
Code
|
VARCHAR2(5)
|
|
|
U.S.
postal zip code that corresponds to property location.
|
|
FNMA
Delinquency status code
|
VARCHAR2(3)
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
09=Forbearance
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer that
reflects
the current defaulted status of a loan (i.e.: 65, 67, 43 or
44).
|
1-2-8
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
|
Suspense
balance
|
NUMBER(10,2)
|
|
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow, etc.
|
|
Restricted
escrow balance
|
NUMBER(10,2)
|
|
|
Money
held in escrow by the mortgage company through completion of repairs
to
property.
|
|
Investor
number
|
NUMBER
(10,2)
|
|
|
Unique
number assigned to a group of loans in the servicing system.
|
1-2-9
EXHIBIT
2
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
_______
__, 2001
_____________________________________________
hereby certifies that it has established the account described below as a
Custodial Account pursuant to Section 2.04 of the Flow Interim Servicing
Agreement, dated as of April 10, 2006, Fixed and Adjustable Rate Mortgage
Loans,
Group 2006-FLOW.
Title
of
Account: “GreenPoint
Mortgage Funding Inc. in trust for the registered Purchaser, Group
2006-FLOW.”
Account
Number:
Address
of office or branch
of
the
Seller at
which
Account is maintained:
GREENPOINT
MORTGAGE FUNDING INC.
Seller
By:
Name:
Title:
2-1
EXHIBIT
3
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
_______
__, 2001
|
To:
|
|
|
|
|
|
|
|
|
|
|
|
(the
“Depository”)
|
|
As
Seller
under the Flow Interim Servicing Agreement, dated as of April 10, 2006, Fixed
and Adjustable
Rate Mortgage Loans, Group 2001-1 (the “Agreement”), we hereby authorize and
request you to establish an account, as a Custodial Account pursuant to
Section 2.04 of the Agreement, to be designated as “GreenPoint Mortgage
Funding Inc. in trust for the Fixed and Adjustable Rate Mortgage Loans -
Group
2006-FLOW.” All deposits in the account shall be subject to withdrawal therefrom
by order signed by the Seller. You may refuse any deposit which would result
in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
GREENPOINT
MORTGAGE FUNDING INC.
Seller
By:
Name:
Title:
Date:
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
Depository
By:
Name:
Title:
Date:
3-1
EXHIBIT
4
FORM
OF ESCROW ACCOUNT CERTIFICATION
_________
___, 200_
GreenPoint
Mortgage Funding Inc. hereby certifies that it has established the account
described below as an Escrow Account pursuant to Section 2.06 of the Flow
Interim Servicing Agreement, dated as of April 10, 2006, Fixed and Adjustable
Rate Mortgage Loans, Group 2006-FLOW.
Title
of
Account: “GreenPoint Mortgage Funding Inc. in trust for the Purchaser of the
Fixed and Adjustable Rate Mortgage Loans, Group ___, and various
Mortgagors.”
Account
Number:
Address
of office or branch
of
the
Seller at
which
Account is maintained:
GREENPOINT
MORTGAGE FUNDING INC.
Seller
By:
Name:
Title:
Date:
4-1
EXHIBIT
5
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
_______
__, 200_
|
To:
|
|
|
|
|
|
|
|
|
|
|
|
(the
“Depository”)
|
|
As
Seller
under the Flow Interim Servicing Agreement, dated as of April 10, 2006, Fixed
and Adjustable Rate Mortgage Loans, Group 2006-FLOW (the “Agreement”), we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 2.06 of the Agreement, to be designated as “GreenPoint Mortgage
Funding Inc., in trust for the Purchasers of Fixed and Adjustable Rate Mortgage
Loans - Group 2006-FLOW.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Seller. You may refuse any deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate.
Please
execute and return one original to us.
GREENPOINT
MORTGAGE FUNDING INC.
Seller
By:
Name:
Title:
Date:
5-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
Depository
By:
Name:
Title:
Date:
5-2
EXHIBIT
6
ACKNOWLEDGMENT
AGREEMENT
On
this
____ day of ____________, 200_, ▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers
Holdings Inc., (the “Purchaser”)
as the
Purchaser under that certain Flow Interim Servicing Agreement dated as of
April
10, 2006, (the “Agreement”),
does
hereby contract with GreenPoint Mortgage Funding Inc. (the “Seller”)
as
Seller under the Agreement, for the servicing responsibilities related to
the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto. The
Seller
hereby accepts the servicing responsibilities transferred hereby and on the
date
hereof assumes all servicing responsibilities related to the Mortgage Loans
identified on the attached Mortgage Loan Schedule all in accordance with
the
Agreement. The contents of each Servicing File required to be delivered to
service the Mortgage Loans pursuant to the Agreement have been or shall be
delivered to the Seller by the Purchaser in accordance with the terms of
the
Agreement.
With
respect to the Mortgage Loans made subject to the Agreement hereby, the Closing
Date shall be ___________________ and the Transfer Date shall be
_______________.
All
other
terms and conditions of this transaction shall be governed by the
Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
6-1
This
Acknowledgment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all
such
counterparts shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to
be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
PURCHASER:
|
|
▇▇▇▇▇▇
CAPITAL, A DIVISION OF
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
|
|
By:
|
|
Name:
|
|
Title:
|
|
SELLER:
|
|
GREENPOINT
MORTGAGE FUNDING INC.
|
|
By:
|
|
Name:
|
|
Title:
|
6-2
EXHIBIT
7
ANNUAL
CERTIFICATION
Re:The
[ ]
agreement dated as of [ ],
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
1. I
have
reviewed the servicer compliance statement of the Seller provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Seller’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Seller
during
200[ ] that were delivered by the Seller to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee] pursuant to the Agreement (collectively,
the “Seller Servicing Information”);
2. Based
on
my knowledge, the Seller Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Seller Servicing Information;
3.
Based on
my knowledge, all of the Seller Servicing Information required to be provided
by
the Seller under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
4. I
am
responsible for reviewing the activities performed by the Seller as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Seller has fulfilled its obligations under the Agreement in all material
respects; and
5. The
Compliance Statement required to be delivered by the Seller pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Seller and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
7-1
Capitalized
terms used but not defined herein shall have the meanings assigned in [the
Trust
Agreement] [the Pooling and Servicing Agreement] [the Servicing
Agreement].
Date: _________________________
By:____________________________
[Name]
[Title]
7-2
EXHIBIT
8
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Seller] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
|
Investor
Remittances and Reporting
|
|
8-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
8-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF SELLER] [NAME OF SUBSERVICER]
Date
By:
[Name]
[Title]
8-3