WELLS FARGO BANK, NATIONAL ASSOCIATION as Master Servicer DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee and MORTGAGEIT, INC. as Seller and Servicer SERVICING AGREEMENT Dated as of February 1, 2006 MortgageIT Trust 2006-1 Mortgage Pass-Through...
EXECUTION
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Master
Servicer
DEUTSCHE
BANK NATIONAL TRUST COMPANY
as
Trustee
and
MORTGAGEIT,
INC.
as
Seller
and Servicer
Dated
as
of February 1, 2006
MortgageIT
Trust 2006-1
Mortgage
Pass-Through Certificates, Series 2006-1
TABLE
OF
CONTENTS
|
ARTICLE
I
DEFINITIONS
|
1
|
|
|
Section
1.01
|
Defined
Terms.
|
1
|
|
ARTICLE
II
SERVICING OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS
AND
RECORDS;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
|
10
|
|
|
Section
2.01
|
Servicing
of Mortgage Loans.
|
10
|
|
Section
2.02
|
Maintenance
of Servicing Files.
|
10
|
|
Section
2.03
|
Books
and Records.
|
10
|
|
Section
2.04
|
Transfer
of Mortgage Loans.
|
11
|
|
Section
2.05
|
Delivery
of Mortgage Loan Documents.
|
11
|
|
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
|
12
|
|
|
Section 3.01
|
Representations
of the Servicer.
|
12
|
|
ARTICLE
IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
|
13
|
|
|
Section
4.01
|
Servicer
to Act as Servicer.
|
13
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments.
|
16
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans.
|
17
|
|
Section
4.04
|
Establishment
of Protected Accounts; Deposits in Protected Accounts.
|
18
|
|
Section
4.05
|
Permitted
Withdrawals From the Protected Account.
|
19
|
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
|
20
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
21
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage
Insurance Policies, Collections Thereunder.
|
22
|
|
Section
4.09
|
Transfer
of Accounts.
|
23
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
23
|
|
Section
4.11
|
Blanket
Hazard Insurance.
|
24
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions Insurance.
|
24
|
|
Section
4.13
|
Title,
Management and Disposition of REO Property.
|
24
|
|
Section
4.14
|
Notification
of Adjustments.
|
26
|
|
Section
4.15
|
Compliance
with Applicable Laws.
|
26
|
|
Section
4.16
|
Waiver
of Prepayment Charges.
|
26
|
|
Section
4.17
|
Optional
Purchase of Defaulted Mortgage Loans.
|
26
|
|
ARTICLE
V
PAYMENTS TO THE TRUST
|
27
|
|
|
Section
5.01
|
Remittances.
|
27
|
|
Section
5.02
|
Statements
to the Master Servicer, Securities Administrator and Depositor.
|
27
|
|
Section
5.03
|
Monthly
Advances by the Servicer.
|
28
|
|
Section
5.04
|
Liquidation
Reports.
|
29
|
i
|
ARTICLE
VI
GENERAL SERVICING PROCEDURES
|
29
|
|
|
Section 6.01
|
Assumption
Agreements.
|
29
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
|
30
|
|
Section
6.03
|
Servicing
Compensation.
|
31
|
|
Section
6.04
|
Report
on Compliance and Attestation.
|
31
|
|
Section
6.05
|
Servicer
Compliance Statement.
|
32
|
|
Section
6.06
|
Master
Servicer’s Right to Examine Servicer Records.
|
32
|
|
Section
6.07
|
Compliance
with REMIC Provisions.
|
33
|
|
Section
6.08
|
Non-solicitation.
|
33
|
|
Section
6.09
|
Reporting
Requirements of the Commission and Indemnification.
|
33
|
|
ARTICLE
VII
REPORTS TO BE PREPARED BY SERVICER
|
34
|
|
|
Section
7.01
|
Servicer
Shall Provide Information as Reasonably Required.
|
34
|
|
ARTICLE
VIII
THE SERVICER
|
34
|
|
|
Section
8.01
|
Additional
Indemnification by the Servicer.
|
34
|
|
Section
8.02
|
Merger
or Consolidation of the Servicer.
|
37
|
|
Section
8.03
|
Limitation
on Liability of the Servicer and Others.
|
37
|
|
Section
8.04
|
Subservicing
Agreements and Successor Subservicer.
|
38
|
|
Section
8.05
|
Servicer
Not to Resign.
|
39
|
|
Section
8.06
|
No
Transfer of Servicing.
|
39
|
|
Section
8.07
|
Anti-Money
Laundering.
|
40
|
|
ARTICLE
IX
DEFAULT
|
40
|
|
|
Section
9.01
|
Events
of Default.
|
40
|
|
Section 9.02
|
Waiver
of Defaults.
|
42
|
|
ARTICLE
X
TERMINATION
|
42
|
|
|
Section
10.01
|
Termination.
|
42
|
|
ARTICLE
XI
MISCELLANEOUS PROVISIONS
|
43
|
|
|
Section
11.01
|
Successor
to the Servicer.
|
43
|
|
Section
11.02
|
Amendment.
|
44
|
|
Section
11.03
|
Governing
Law.
|
44
|
|
Section
11.04
|
Notices.
|
44
|
|
Section
11.05
|
Severability
of Provisions.
|
45
|
ii
|
Section
11.06
|
Exhibits
and Schedules.
|
45
|
|
Section
11.07
|
General
Interpretive Principles.
|
45
|
|
Section
11.08
|
Reproduction
of Documents.
|
46
|
|
Section
11.09
|
Confidentiality
of Information.
|
46
|
|
Section
11.10
|
Reserved.
|
47
|
|
Section
11.11
|
No
Partnership.
|
47
|
|
Section
11.12
|
Counterparts;
Successors and Assigns.
|
47
|
|
Section
11.13
|
Entire
Agreement.
|
47
|
|
Section
11.14
|
Further
Agreements.
|
47
|
|
Section
11.15
|
Third
Party Beneficiary.
|
47
|
iii
EXHIBITS
| Exhibit A |
Mortgage
Loan Schedule
|
| Exhibit B |
Protected
Account Letter Agreement
|
| Exhibit C |
Escrow
Account Letter Agreement
|
| Exhibit D |
Format
for Monthly Loan Remittance Data
|
| Exhibit E |
Default
Reporting Format
|
| Exhibit F |
Format
for Reporting Realized Losses or
Gains
|
| Exhibit G |
Form
of Request for Release
|
| Exhibit H |
Form
of Certification Regarding Servicing Criteria to be Addressed in
Report on
Assessment of Compliance
|
| Exhibit I |
Transaction
Parties
|
| Exhibit J |
Form
of Annual Certification
|
iv
THIS
IS A
SERVICING AGREEMENT, dated as of February 1, 2006 (the “Agreement”), and is
executed among ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as master servicer (the
“Master Servicer”), Deutsche Bank National Trust Company, in its capacity as
trustee (the “Trustee”) and MortgageIT, Inc. (the “Company”), in its capacity as
seller (the “Seller”) and in its capacity as servicer (the
“Servicer”).
W
I T N E
S S E T H :
WHEREAS,
the Company owns and services certain residential Mortgage Loans set forth
on
the Mortgage Loan Schedule attached hereto as Exhibit A (the “Mortgage
Loans”);
WHEREAS,
the Seller will transfer the Mortgage Loans and all of its rights, title and
interests thereto pursuant to that certain Mortgage Loan Purchase Agreement,
dated as of February 1, 2006, by and between the Seller and Greenwich Capital
Acceptance, Inc. (the “Depositor”);
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement, dated as of February
1, 2006 (the “Pooling and Servicing Agreement”) among the Depositor, the Seller,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities Administrator, and
the
Trustee, the Depositor will assign,
transfer, sell,
set
over and otherwise convey the Mortgage Loans to the Trustee for the
benefit of the Certificateholders and the Trustee on behalf of the Trust Fund
and will issue the Mortgage-Backed Pass-Through Certificates, Series 2006-1
(the
“Certificates”);
and
WHEREAS,
pursuant to the terms of this Agreement, the Servicer will service the Mortgage
Loans for the benefit of the Certificateholders in accordance with the terms
and
provisions of this Agreement;
WHEREAS,
GMAC Mortgage Corporation, a Pennsylvania corporation (the “Subservicer”) will
sub-service the Mortgage Loans for the Company pursuant to that certain
Subservicing Agreement, dated as of February 1, 2006, by and between the Company
and the Subservicer (the “Subservicing Agreement”);
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Master Servicer, Trustee, Seller and the Servicer
agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
For
all
purposes of this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in Article I of the
Pooling and Servicing Agreement, which is incorporated by reference herein.
All
other capitalized terms used herein shall have the meanings specified
herein.
1
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan or REO Property
those
mortgage servicing practices of mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, exercising the same care in
performing those practices that the Servicer customarily employs and exercises
in servicing and administering mortgage loans for its own account (including,
compliance with all applicable federal, state and local laws).
Adjustment
Date:
As to
each ARM Loan, the date on which the Mortgage Interest Rate is adjusted in
accordance with the terms of the related Mortgage Note and
Mortgage.
Agreement:
This
Servicing Agreement including all exhibits hereto, amendments hereof and
supplements hereto.
ARM
Loan:
A first
lien, conventional, 1-4 family residential Mortgage Loan with an interest rate
which adjusts from time to time in accordance with the related Index and is
subject to a Periodic Rate Cap and a Lifetime Rate Cap and which may permit
conversion to a fixed interest rate.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
Maryland, Minnesota, New York, California, the Commonwealth of Pennsylvania
or
the jurisdiction in which the Servicer conducts its servicing activities, or
(iii) a day on which banking and savings and loan institutions in the States
of
Maryland, Minnesota, New York, California, the Commonwealth of Pennsylvania
or
the jurisdiction in which the Servicer conducts its servicing activities are
authorized or obligated by law or executive order to be closed.
Code:
The
Internal
Revenue Code of 1986, as it may be amended from time to time, or any successor
statute thereto, and applicable U.S. Department of the Treasury regulations
issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Company:
MortgageIT, Inc., its successors in interest and assigns.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Custodian:
Deutsche Bank National Trust Company, its
successors in interest and assigns.
Depositor:
Greenwich Capital Acceptance, Inc.
2
Determination
Date:
The
15th day of any month, or if such 15th day is not a Business Day, the first
Business Day immediately preceding such 15th day.
Due
Date:
With
respect to any Mortgage Loan, each day on which payments of principal and
interest are required to be paid in accordance with the terms of the related
Mortgage Note, exclusive of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the first day
of
the month of such Remittance Date.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled “Escrow Account in trust for Deutsche Bank National
Trust Company, as trustee of MortgageIT Trust 2006-1” and shall be established
at a Qualified Depository.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
▇▇▇▇▇▇
▇▇▇:
▇▇▇▇▇▇
▇▇▇, or any successor thereto.
▇▇▇▇▇▇
Mae Guide:
The
▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide and all amendments
or additions thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
from time to time.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
▇▇▇▇▇▇▇
Mac Guide:
The
▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac Servicing Guide and all amendments
or additions thereto.
Full
Principal Prepayment:
A
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
GAAP:
Generally accepted accounting principles and procedures, consistently
applied.
3
HUD:
The
United States Department of Housing and Urban Development or any successor
thereto.
Index:
With
respect to each ARM Loan, the index, as specified in the related Mortgage Note,
used to determine the Mortgage Interest Rate on each Adjustment Date on such
ARM
Loan.
Index
Rate:
With
respect to each ARM Loan, on each Adjustment Date, the rate per annum equal
to
the Index, calculated as provided in the related Mortgage Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lifetime
Rate Cap:
With
respect to each ARM Loan, the maximum Mortgage Interest Rate over the term
of
such Mortgage Loan, as specified in the related Mortgage Note.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, short sale or otherwise, other than amounts received following
the acquisition of an REO Property pursuant to Section 4.13.
Margin:
With
respect to each ARM Loan, the fixed percentage amount set forth in the related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer:
▇▇▇▇▇
Fargo Bank, N.A., its successors in interest and assigns.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date required to be advanced
by the Servicer pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment of principal and
interest thereon which is payable by the related Mortgagor under the related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a lien on real property securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance with
the provisions of the related Mortgage Note, and in the case of an ARM Loan,
as
adjusted from time to time on each Adjustment Date for such Mortgage Loan to
equal the Index Rate for such Mortgage Loan plus the Margin for such Mortgage
Loan, and subject to the limitations on such interest rate imposed by the
Periodic Rate Cap and the Lifetime Rate Cap.
Mortgage
Loan:
An
individual Mortgage Loan described herein and as further identified on the
Mortgage Loan Schedule, as amended from time to time, which Mortgage Loan
includes without limitation the Mortgage Loan Documents, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
4
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the original related Mortgage Note with applicable
addenda and riders, the original related Mortgage and the originals of any
required addenda and riders, the original related assignment and any original
intervening related assignments, the original related title insurance policy,
related PMI policy, if any, and the related appraisal report held by the Trustee
or by a Custodian on the Trustee’s behalf.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Trust, which shall be equal to the related Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached hereto as Exhibit A, as supplemented from
time to time in accordance with the provisions hereof.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
Nonrecoverable
Advance:
Any
Monthly Advance previously made or proposed to be made by the Servicer pursuant
to Section 5.03 or any Servicing Advance which, in the good faith judgment
of
the Servicer, will not or, in the case of a proposed advance, would not, be
ultimately recoverable by the Servicer from Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, or otherwise with respect to a particular
Mortgage Loan. The determination by the Servicer that it has made a
Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate of the
Servicer delivered to the Master Servicer and detailing the reasons for such
determination.
Officers’
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President, a Vice President or an Assistant Vice President or by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, and delivered to the Master Servicer as required
by
this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the other
party.
Partial
Principal Prepayment:
A
Principal Prepayment by a Mortgagor in part but not in full of the outstanding
principal balance of a Mortgage Loan.
5
Participating
Entity:
Any
Person “participating in the servicing function” within the meaning of Item 1122
of Regulation AB.
Periodic
Rate Cap:
With
respect to each ARM Loan, the maximum number of percentage points by which
the
Mortgage Interest Rate may increase or decrease on any Adjustment
Date.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
by the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America;
(ii) (a)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term deposit rating and/or the long-term
unsecured debt obligations or deposits of such depository institution or trust
company at the time of such investment or contractual commitment providing
for
such investment are rated in one of the two highest rating categories by each
Rating Agency and (b) any other demand or time deposit or certificate of deposit
that is fully insured by the FDIC;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an agency or instrumentality
of
the United States of America, the obligations of which are backed by the full
faith and credit of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (ii)(a) above;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof that are
rated in the highest rating categories by each Rating Agency at the time of
such
investment or contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not be
Permitted Investments to the extent that investments therein will cause the
then
outstanding principal amount of securities issued by such corporation and held
as Permitted Investments to exceed 10% of the aggregate outstanding principal
balances and amounts of all the Permitted Investments;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than one year after the date of issuance thereof) which are rated in the highest
rating categories by each Rating Agency at the time of such
investment;
(vi) any
other
demand, money market or time deposit, obligation, security or investment as
may
be acceptable to each Rating Agency; and
6
(vii) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (i)) and which money market funds
are
rated in one of the two highest rating categories by each Rating
Agency;
provided,
however, that no instrument or security shall be a Permitted Investment if
such
instrument or security evidences a right to receive only interest payments
with
respect to the obligations underlying such instrument or if such security
provides for payment of both principal and interest with a yield to maturity
in
excess of 120% of the yield to maturity at par; and provided further that any
such instrument or security must be payable on demand or on a specified date
not
later than the Remittance Date on which amounts held therein are required to
be
distributed.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
if
any, due in connection with a full or partial prepayment of such Mortgage Loan
during the immediately preceding Due Period in accordance with the terms
thereof.
Prepayment
Interest Shortfall:
On any
Remittance Date, the sum of the differences between (a) the scheduled interest
portion of the Monthly Payment of such Mortgage Loan, adjusted to the applicable
Mortgage Loan Remittance Rate and (b) interest actually received in a Due Period
as a result of a Full Principal Prepayment or Partial Principal Prepayment
or
other unscheduled receipt of principal (including as a result of a liquidation)
on each Mortgage Loan as to which such a payment is received.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance, or any replacement policy therefor
obtained by the Servicer pursuant to Section 4.08.
Prime
Rate:
The
prime rate of U.S. money center banks as published from time to time in
The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, full or partial,
which is received in advance of its scheduled Due Date, including any Prepayment
Charge or premium thereon, and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Protected
Account:
The
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled “Protected Account in trust for Deutsche Bank
National Trust Company, as trustee of MortgageIT Trust 2006-1” and shall be
established at a Qualified Depository.
7
Qualified
Appraiser:
An
appraiser, duly appointed by the Servicer, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of the
Mortgage Loan, which appraiser and the appraisal made by such appraiser both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Depository:
(a) a
depository, the accounts of which are insured by the FDIC and the short term
debt ratings and the long term deposit ratings of which are rated in one of
the
two highest rating categories by either of ▇▇▇▇▇’▇ Investors Service, Inc. or
Fitch, Inc., (b) a depository, the short-term debt obligations, or other
short-term deposits of which are rated at least ‘A-2’ and the long-term
unsecured debt obligations of which are rated at least ‘AA-’ by Standard &
Poor's Ratings Service, a division of The McGraw Hill Companies Inc., or (c)
GMAC Bank.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Rating
Agency:
Standard & Poor’s Ratings Service, a division of The McGraw Hill Companies
Inc. or ▇▇▇▇▇’▇ Investors Service, Inc.
Reg
AB
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of the Mortgage Loans but performs one or
more discrete functions identified in Item 1122(d) of Regulation AB with respect
to the Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Reg
AB
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer and is responsible
for the performance (whether directly or through Subservicer Subcontractors)
of
a substantial portion of the material servicing functions required to be
performed by the Servicer under this Agreement that are identified in Item
1122(d) of Regulation AB.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Provisions:
The
provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
8
Remittance
Date:
The
18th day of any month, or if such 18th day is not a Business Day, the first
Business Day immediately preceding such 18th day.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trust as described
in Section 4.13.
Servicer:
MortgageIT, Inc., or any of its successors in interest or any successor under
this Agreement appointed as herein provided.
Servicing
Advances:
All
customary, reasonable and necessary “out-of-pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations relating to each
Mortgage Loan and REO Property, including the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, including, without
limitation, valuation and inspection-related fees, (b) any enforcement,
administrative or judicial proceedings, or any legal work or advice specifically
related to servicing the Mortgage Loans, including foreclosures, bankruptcies,
condemnations, drug seizures, elections, foreclosures by subordinate or superior
lienholders, and other legal actions incidental to the servicing of the Mortgage
Loans (provided that such expenses are reasonable and that the Servicer
specifies the Mortgage Loan(s) to which such expenses relate), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage and (e) compliance with the
obligations under Section 4.08.
Servicing
Fee:
With
respect to each Mortgage Loan and any Distribution Date, be equal to one-twelfth
of the product of (a) the Servicing Fee Rate and (b) the scheduled principal
balance of such Mortgage Loan as of the first day of the related Due Period.
Such fee shall be payable monthly, computed on the basis of the same principal
amount and period respecting which any related interest payment on a Mortgage
Loan is computed.
Servicing
Fee Rate:
0.375%
per annum.
Servicing
File:
The
documents, records and other items pertaining to a particular Mortgage Loan,
and
any additional documents relating to such Mortgage Loan as are in, or as may
from time to time come into, the Servicer’s possession.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer upon request, as
such
list may from time to time be amended.
9
Subservicer:
GMAC
Mortgage Corporation, or any of its successors in interest or any successor
under the Subservicing Agreement appointed as provided therein.
Trust:
The
trust established by the Depositor with respect to the MortgageIT Trust 2006-1,
Mortgage Pass-Through Certificates, Series 2006-1, pursuant to the Pooling
and
Servicing Agreement.
Trustee:
Deutsche Bank National Trust Company, or its successor in
interests.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES;
BOOKS
AND
RECORDS; DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Servicing
of Mortgage Loans.
The
Servicer hereby agrees to service the Mortgage Loans, from and after the Closing
Date, pursuant to the terms of this Agreement. The Mortgage Loans subject to
this Agreement are described in the Mortgage Loan Schedule attached hereto
as
Exhibit A.
Section
2.02 Maintenance
of Servicing Files.
The
Servicer shall maintain a Servicing File consisting of all documents necessary
to service the Mortgage Loans. The possession of each Servicing File by the
Servicer is for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Servicer is in a custodial capacity only.
The Servicer acknowledges that the ownership of each Mortgage Loan is vested
in
the Trust. All rights arising out of the Mortgage Loans including all funds
received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into
the
possession of the Servicer shall be received and held by the Servicer for the
sole purpose of servicing the Mortgage Loans and such retention and possession
by the Servicer is in a custodial capacity only in trust for the exclusive
benefit of the Trust. Any portion of the related Servicing Files retained by
the
Servicer shall be appropriately identified in the Servicer’s computer system to
reflect clearly the ownership of the related Mortgage Loans by the Trust. The
Servicer shall release its custody of the contents of the related Servicing
Files only in accordance with this Agreement.
Section
2.03 Books
and Records.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans which shall be appropriately
identified in the Servicer’s computer system to clearly reflect the ownership of
the Mortgage Loan by the Trust. In particular, the Servicer shall maintain
in
its possession, available for inspection by the Trustee, the Master Servicer
or
its designee, upon reasonable notice or reasonable request, and consistent
with
Accepted Servicing Practices, reasonable evidence of compliance with all
federal, state and local laws, rules and regulations, as applicable, including
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ ▇▇▇ and periodic inspection
reports as required by Section 4.13. To the extent that original documents
are
not required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Servicer may be in the form of microfilm
or microfiche or such other reliable means of recreating original documents,
including optical imagery techniques so long as the Servicer complies in all
material respects with the requirements of the ▇▇▇▇▇▇ Mae Guide.
10
Section
2.04 Transfer
of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Servicer shall
be
under no obligation to deal with any Person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan has
been
delivered to the Servicer in accordance with this Section 2.04 and the
requirements for such transfer set forth in Section 11.10 have been satisfied.
Upon receipt of notice of the permitted transfer, the Servicer shall ▇▇▇▇ its
books and records to reflect such assignee’s ownership of the related Mortgage
Loans, and the previous owner shall be deemed released from its obligations
hereunder with respect to such Mortgage Loans from and after the date of such
sale or transfer without the necessity of any action on the part of the Servicer
(except that Articles III and VIII and Sections 11.03 and 11.04 shall survive
such transfer) .
Section
2.05 Delivery
of Mortgage Loan Documents.
The
Servicer shall forward to the Custodian on behalf of the Trust original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 promptly
after their execution; provided, however, that the Servicer shall provide the
Custodian on behalf of the Trust with a certified true copy of any such document
submitted for recordation promptly after its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original promptly after receipt thereof, but in no event later
than
240 days after its execution, provided, however, that if delivery is not
completed within 240 days solely due to delays in making such delivery by reason
of the fact that such documents shall not have been returned by the appropriate
recording office, the Servicer shall continue to use its reasonable best efforts
to obtain such documents and effect delivery as soon as possible after its
receipt thereof.
From
time
to time the Servicer may have a need for Mortgage Loan Documents to be released
by the Custodian. If the Servicer shall require any of the Mortgage Loan
Documents, the Servicer shall notify the Custodian in writing of such request
in
the form of request for release attached hereto as Exhibit G. During the time
that any such documentation is held by the Servicer, such possession is in
trust
for the benefit of the Trust, and the Servicer shall return such documentation
to the Custodian upon the request of the Trustee or when the Servicer’s need
therefore no longer exists.
11
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01 Representations
of the Servicer.
The
Servicer hereby represents, warrants and covenants to the Master Servicer,
Depositor, Trustee and Seller that, as of the Closing Date:
(a) It
is a
corporation duly organized, validly existing and in good standing under the
laws
of the state of incorporation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by it, and in any event it is in compliance with the laws of any
such
state to the extent necessary to ensure the enforceability of the related
Mortgage Loan and the servicing of such Mortgage Loan in accordance with the
terms of this Agreement; it has the full corporate power and authority to
execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement by it and the consummation
of the transactions contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable obligation of the
Servicer (assuming due execution and delivery by the Master Servicer and
Trustee), subject, as to enforceability, to bankruptcy, insolvency and other
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and all requisite corporate action has been taken
by
it to make this Agreement valid and binding upon it in accordance with its
terms;
(b) Neither
the execution and delivery of this Agreement, or the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
of
this Agreement will conflict with or result in a breach of any of its terms,
articles of incorporation or by-laws or any legal restriction or any agreement
or instrument to which it is now a party or by which it is bound, or constitute
a default or result in the violation of any law, rule, regulation, order,
judgment or decree to which it or its property is subject;
(c) There
is
no action, suit, proceeding or investigation pending or, to the Servicer’s
knowledge, threatened against it 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 it, or in any material
impairment of the right or ability of the it to carry on its business
substantially as now conducted, or in any material liability on the part of
it,
or which would draw into question the validity of this Agreement or the Mortgage
Loans or of any action taken or to be contemplated herein, or which would be
likely to impair materially the ability of it to perform under the terms of
this
Agreement;
(d) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by it of or
compliance by it with this Agreement, or if required, such approval has been
obtained prior to the Closing Date;
(e) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 4.16;
12
(f) The
Servicer will fully furnish, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to the three national
credit repositories on a monthly basis; and
(g) Except
as
disclosed in writing to the Company and the Depositor prior to the Closing
Date:
(i) the Servicer is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred as to
any
other securitization due to any act or failure to act of the Servicer; (ii)
the
Servicer has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been disclosed
or reported by the Servicer; (iv) no material changes to the Servicer’s policies
or procedures with respect to the servicing function it will perform under
this
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the Closing Date;
(v) there are no aspects of the Servicer’s financial condition that could have a
material adverse effect on the performance by the Servicer of its servicing
obligations under this Agreement and (vi) there are no affiliations,
relationships or transactions relating to the Servicer with any party listed
on
Exhibit I hereto of a type described in Item 1119 of Regulation AB.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Servicer
to Act as Servicer.
The
Servicer, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices, and shall have full power and authority, acting alone, to do or
cause
to be done any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable and consistent
with the terms of this Agreement and with Accepted Servicing Practices. Except
as otherwise set forth in this Agreement (and to the extent consistent with
the
terms of this Agreement and Accepted Servicing Practices), the Servicer shall
service the Mortgage Loans in compliance with the servicing provisions of the
▇▇▇▇▇▇ ▇▇▇ Guide, including provisions regarding the liquidation of Mortgage
Loans, the collection of Mortgage Loan payments, the payment of taxes, insurance
and other charges, the maintenance of title insurance, hazard insurance, flood
insurance, Primary Mortgage Insurance Policies, a Fidelity Bond and errors
and
omissions insurance, all such coverage to be maintained with a Qualified
Insurer, inspections, the restoration of Mortgaged Property, all such coverage
to be maintained insurance claims, management of REO Property, permitted
withdrawals with respect to REO Property, liquidation reports, and reports
of
foreclosures and abandonments of Mortgaged Property, the transfer of Mortgaged
Property, the release of Mortgage Loan Documents, annual statements, and
examination of records and facilities. In the event of any conflict,
inconsistency or discrepancy between any of the servicing provisions of this
Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guide, the
provisions of this Agreement shall control and be binding upon the Master
Servicer and the Servicer. The Trustee may, at the request of the Servicer,
deliver powers-of-attorney in the standard form used by the Trustee to the
Servicer the Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor
sufficient to allow the applicable party to execute all documentation requiring
execution on behalf of the Trust with respect to the servicing of the Mortgage
Loans, including satisfactions, partial releases, modifications and foreclosure
documentation or, in the alternative, shall as promptly as reasonably feasible,
execute and return such documentation to the Servicer, the Subservicer, any
Reg
AB Subservicer or any Reg AB Subcontractor. The Trustee shall not be liable
for
any actions of the Servicer, the Subservicer, any Reg AB Subservicer or any
Reg
AB Subcontractor, or for the use of such powers-of-attorney.
13
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of any such term or
in
any manner grant indulgence to any Mortgagor if in the Servicer’s reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Trust; provided, however, that unless the Servicer
has obtained the prior written consent of the Master Servicer, the Servicer
shall not permit any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, forgive the payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage Loan. In the
event of any such modification which has been agreed to in writing by the Master
Servicer and which permits the deferral of interest or principal payments on
any
Mortgage Loan, the Servicer shall, on the Business Day immediately preceding
the
related Remittance Date in any month in which any such principal or interest
payment has been deferred, deposit in the Protected Account from its own funds,
in accordance with Section 4.04 and Section 5.03, the difference between (a)
such month’s principal and one month’s interest at the related Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and (b)
the amount paid by the Mortgagor. The Servicer shall be entitled to
reimbursement for such advances to the same extent as for all other advances
pursuant to Section 4.05. Without limiting the generality of the foregoing,
the
Servicer shall continue, and is hereby authorized and empowered, to prepare,
execute and deliver, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
Notwithstanding anything herein to the contrary, the Servicer may not enter
into
a forbearance agreement or similar arrangement with respect to any Mortgage
Loan
which runs more than 180 days after the first delinquent Due Date. Any such
agreement shall be approved by the Master Servicer and, if required, by the
Primary Mortgage Insurance Policy insurer.
Notwithstanding
anything in this Agreement to the contrary, if a REMIC election is made and
the
Mortgage Loans and REO Properties are the sole property of such REMIC, the
Servicer shall not (unless the related Mortgagor is in default with respect
to
the Mortgage Loan or such default is, in the judgment of the Servicer,
reasonably foreseeable) make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would both (i) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) and (ii) cause the related REMIC to fail
to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions” after the “startup date” of such REMIC under
the REMIC Provisions.
The
Servicer shall perform all of its servicing responsibilities hereunder or may
cause the the Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor
to
perform any such servicing responsibilities on its behalf, but the use by the
Servicer of the Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor
shall not release the Servicer from any of its obligations hereunder and the
Servicer shall remain responsible hereunder for all acts and omissions of the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor as fully as
if
such acts and omissions were those of the Servicer. The Subservicer, any Reg
AB
Subservicer or any Reg AB Subcontractor must be a ▇▇▇▇▇▇ ▇▇▇ approved
seller/servicer or a ▇▇▇▇▇▇▇ Mac approved seller/servicer in good standing
and
no event shall have occurred, including but not limited to, a change in
insurance coverage, which would make it unable to comply with the eligibility
requirements for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, or
which
would require notification to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall
pay
all fees and expenses of the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor from its own funds, and the Subservicer’s, any Reg AB
Subservicer’s or any Reg AB Subcontractor’s fee shall not exceed the Servicing
Fee.
14
At
the
cost and expense of the Servicer, without any right of reimbursement from the
Protected Account, the Servicer shall be entitled to terminate the rights and
responsibilities of the Subservicer, any Reg AB Subservicer or any Reg AB
Subcontractor and arrange for any servicing responsibilities to be performed
by
a successor Reg AB Subservicer or Reg AB Subcontractor meeting the requirements
in the preceding paragraph; provided, however, that nothing contained herein
shall be deemed to prevent or prohibit the Servicer, at the Servicer’s option,
from electing to service the related Mortgage Loans itself. In the event that
the Servicer’s responsibilities and duties under this Agreement are terminated
pursuant to Section 8.04, 9.01 or 10.01, and if requested to do so by the Master
Servicer, or any successor Servicer, the Servicer shall at its own cost and
expense terminate the rights and responsibilities of the Subservicer, any Reg
AB
Subservicer or any Reg AB Subcontractor effective as of the date of termination
of the Servicer. The Servicer shall pay all fees, expenses or penalties
necessary in order to terminate the rights and responsibilities of the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor from the
Servicer’s own funds without reimbursement from the Trust.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor or any reference herein to actions taken through the Subservicer,
any Reg AB Subservicer or any Reg AB Subcontractor or otherwise, the Servicer
shall not be relieved of its obligations to the Trust and shall be obligated
to
the same extent and under the same terms and conditions as if it alone were
servicing and administering the Mortgage Loans. The Servicer shall be entitled
to enter into an agreement with the Subservicer, any Reg AB Subservicer or
any
Reg AB Subcontractor for indemnification of the Servicer by the Subservicer,
any
Reg AB Subservicer or any Reg AB Subcontractor and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification. The Servicer
will indemnify and hold the Master Servicer, Trustee and Trust harmless from
any
loss, liability or expense arising out of its use of the Subservicer, any Reg
AB
Subservicer or any Reg AB Subcontractor to perform any of its servicing duties,
responsibilities and obligations hereunder.
Any
subservicing agreement and any other transactions or services relating to the
Mortgage Loans involving the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor shall be deemed to be between the Subservicer, any Reg AB
Subservicer or any Reg AB Subcontractor, as applicable, and Servicer alone,
and
the Master Servicer shall have no obligations, duties or liabilities with
respect to such any Subservicer or Subcontractor including no obligation, duty
or liability of the Master Servicer to pay the Subservicer’s, any Reg AB
Subservicer’s or any Reg AB Subcontractor’s fees and expenses. For purposes of
distributions and advances by the Servicer pursuant to this Agreement, the
Servicer shall be deemed to have received a payment on a Mortgage Loan when
the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor has received
such payment.
15
If
the
Master Servicer or a successor Servicer shall assume the servicing obligations
of the Servicer in accordance with Section 9.01 below, the Master Servicer
or
successor Servicer, to the extent necessary to permit the Master Servicer to
carry out the provisions of Section 9.01 with respect to the Mortgage Loans,
shall succeed to all of the rights and obligations of the Servicer under each
of
the Subservicing Agreements, unless such Subservicing Agreements are terminated
in accordance with this Section 4.01. If such Subservicing Agreements are not
terminated, the Master Servicer or its designee as the successor Servicer shall
be deemed to have assumed all of the Servicer’s rights and obligations therein
and to have replaced the Servicer as a party to such Subservicing Agreements
to
the same extent as if such Subservicing Agreements had been assigned to the
Master Servicer or its designee as a successor Servicer, except that the Master
Servicer or its designee as a successor Servicer shall not be deemed to have
assumed any obligations or liabilities of the Servicer arising prior to such
assumption (other than the obligation to make Monthly Advances) and the Servicer
shall not thereby be relieved of any liability or obligations under such
Subservicing Agreements arising prior to such assumption.
In
the
event that the Master Servicer or a successor Servicer assumes the servicing
obligations of the Servicer under Section 9.01, upon the reasonable request
of
the Master Servicer or such successor Servicer, the terminated Servicer shall
at
its own expense (or the expense of the Trust, if the Servicer fails to do so)
deliver to the Master Servicer, or to such successor Servicer photocopies of
all
documents, files and records, electronic or otherwise, relating to the
Subservicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable efforts to effect the
orderly and efficient transfer of the Subservicing Agreements, or
responsibilities hereunder to the Master Servicer, or to such successor Servicer
or the termination of such Subservicing Agreements in accordance with this
Section 4.01.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer shall proceed with reasonable diligence and in
accordance with Accepted Servicing Practices, to collect all payments due under
each Mortgage Loan when the same shall become due and payable. Further, the
Servicer shall take reasonable care in ascertaining and estimating annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in the
Mortgage Loan Documents, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
16
Section
4.03 Realization
Upon Defaulted Mortgage Loans.
The
Servicer shall use its commercially reasonable efforts, consistent with Accepted
Servicing Practices, to either (i) foreclose upon, repossess or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 4.01 or (ii) as an alternative to foreclosure, sell such defaulted
Mortgage Loans at fair market value to third-parties, if the Servicer
reasonably believes that such sale would maximize proceeds to the Trust Fund
(on
a present value basis) with respect to those Mortgage
Loans. Foreclosure or comparable proceedings shall be initiated within
ninety (90) days of default for Mortgaged Properties for which no satisfactory
arrangements can be made for collection of delinquent payments, subject to
state
and federal law and regulation. The Servicer shall use its reasonable efforts
to
realize upon defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest by the Trust, taking into account, among
other
things, the timing of foreclosure proceedings. The foregoing is subject to
the
provisions that, in any case in which any Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion (i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to the Trust after reimbursement to itself for such expenses,
and
(ii) that such expenses will be recoverable by the Servicer through Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged Property, as
contemplated in Section 4.05. The Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings or functions as Servicing
Advances; provided, however, that it shall be entitled to reimbursement therefor
as provided in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that
a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Master Servicer otherwise requests an environmental inspection or
review of such Mortgaged Property, such an inspection or review is to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Master Servicer with a written report of
the
environmental inspection. After reviewing the environmental inspection report,
the Master Servicer shall direct the Servicer as to how the Servicer shall
proceed with respect to the Mortgaged Property, and the Servicer shall follow
the Master Servicer’s directions with respect thereto.
The
Trust
shall not acquire any real property (or any personal property incident to such
real property) except in connection with a default or reasonably foreseeable
default of a Mortgage Loan. In the event that the Trust which has made one
or
more REMIC elections acquires any real property (or personal property incident
to such real property) in connection with a default or imminent default of
a
Mortgage Loan, such property shall be disposed of by the Servicer (or its agent)
on behalf of the Trust within two years after its acquisition by the Trust
unless the Servicer has applied for and received a grant of extension from
the
Internal Revenue Service (and provides a copy of the same to the Master
Servicer) to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, a REMIC elected by such
Trust may hold REO Property for a longer period without adversely affecting
the
REMIC status of such REMIC or causing the imposition of a federal or state
tax
upon such REMIC. If the Servicer has received such an extension (and provided
a
copy of the same to the Master Servicer), then the Servicer shall continue
to
attempt to sell the REO Property for its fair market value for such period
longer than three years as such extension permits (the “Extended Period”). If
the Servicer has not received such an extension, and the Servicer is unable
to
sell the REO Property within the period ending 3 months before the end of such
third taxable year after its acquisition by the related Trust or if the Servicer
has received such an extension, and the Servicer is unable to sell the REO
Property within the period ending three months before the close of the Extended
Period, the Servicer shall, before the end of the three-year period or the
Extended Period, as applicable, (i) purchase such REO Property at a price equal
to the REO Property’s fair market value or (ii) auction the REO Property to the
highest bidder (which may be the Servicer) in an auction reasonably designed
to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be. The Trustee shall sign any document or
take
any other action reasonably requested by the Servicer which would enable the
Servicer, on behalf of the Trust, to request such grant of extension; provided
that the Trustee shall not be obligated to sign any document which may cause
any
liability to be imposed on the Trustee.
17
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by a Trust
shall be rented (or allowed to continue to be rented) or otherwise used by
or on
behalf of such Trust in such a manner or pursuant to any terms that would:
(i)
cause such REO Property to fail to qualify as “foreclosure property” within the
meaning of Section 860G(a)(8) of the Code; or (ii) subject any REMIC elected
by
such Trust to the imposition of any federal income taxes on the income earned
from such REO Property, including any taxes imposed by reason of Sections 860F
or 860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless such Trust with respect to the imposition of any such
taxes.
Section
4.04 Establishment
of Protected Accounts; Deposits in Protected Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Protected Accounts. Any
funds in a Protected Account may be invested, but only in Permitted Investments
for the benefit of the Trust Fund (with any income earned thereon for the
benefit of the Servicer). Funds deposited in the Protected Account may be drawn
on by the Servicer only in accordance with Section 4.05. The creation of any
Protected Account shall be evidenced by an account certification in the form
shown in Exhibit B hereto. The original of such account certification shall
be
furnished to the Master Servicer and Trustee upon reasonable request. The
Servicer acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of any such losses
shall be immediately deposited by the Servicer in the Protected Account, out
of
the Servicer’s own funds, with no right to reimbursement therefor. The Master
Servicer is under no obligation to review and reconcile any funds collected
and
received in the Protected Accounts.
The
Servicer shall deposit in the Protected Account within two (2) Business Days
of
Servicer's receipt, and retain therein, the following collections:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans and all Prepayment Charges;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the related
Mortgage Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
18
(iv) any
net
amounts received by the Servicer in connection with any REO Property pursuant
to
Section 4.13;
(v) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable law or otherwise held in a suspense
account by Servicer;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property other than proceeds
to be
held in the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with Accepted
Servicing Practices, the Mortgage Loan Documents or applicable law;
(vii) any
Monthly Advances as provided in Section 5.03;
(viii) any
amounts required to be deposited in the Protected Account pursuant to Sections
4.01, 4.14, 6.01 and 6.02; and
(ix) with
respect to each Full Principal Prepayment or Partial Principal Prepayment,
any
Prepayment Interest Shortfall, to the extent of the Servicer’s aggregate
Servicing Fee received with respect to the related Due Period.
The
foregoing requirements for deposit in the Protected Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption fees,
to the extent permitted by Section 6.01, need not be deposited by the Servicer
in the Protected Account.
The
Servicer will require the Subservicer, any Reg AB Subservicer or any Reg AB
Subcontractor to hold all funds constituting collections on the Mortgage Loans,
pending remittance thereof to or on behalf of the Servicer, in one or more
accounts meeting the requirements of an Eligible Account, and invested in
Permitted Investments, and in the name of the Trustee for the benefit of the
Certificateholders. The Subservicer, any Reg AB Subservicer or any Reg AB
Subcontractor shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and any other funds.
Section
4.05 Permitted
Withdrawals From the Protected Account.
The
Servicer may, from time to time, make withdrawals from the Protected Account
for
the following purposes:
(i) to
remit
to the Securities Administrator, by the Servicer Remittance Date, all amounts
required to be deposited in the Protected Account as of the close of business
as
set forth in Section 5.01;
(ii) to
reimburse itself for Monthly Advances, the Servicer’s right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such Monthly Advance
was
made;
19
(iii) to
reimburse itself for unreimbursed Servicing Advances and Monthly Advances,
the
Servicer’s right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to Liquidation Proceeds, Condemnation
Proceeds, and Insurance Proceeds and REO Disposition Proceeds related to such
Mortgage Loan;
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Protected Account (all such interest to be withdrawn monthly not later than
each
Remittance Date) and (b) any Servicing Fee to which the Servicer is entitled
in
accordance with the terms hereof to the extent such Servicing Fee has not been
paid to or retained by the Servicer;
(v) to
reimburse itself for any Nonrecoverable Advances;
(vi) to
transfer funds to another Qualified Depository in accordance with Section 4.09
hereof;
(vii) to
remove
funds deposited in the Protected Account in error by the Servicer;
(viii) to
reimburse itself as provided in Section 8.01 and Section 8.03 hereof; and
(ix) to
clear
and terminate the Protected Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one or
more
Escrow Accounts. Any funds deposited in an Escrow Account may be invested in
Permitted Investments. Funds deposited in an Escrow Account may be drawn on
by
the Servicer in accordance with Section 4.07. The creation of any Escrow Account
shall be evidenced by an account certification in the form shown in Exhibit
C.
The original of such account certification shall be furnished to the Master
Servicer and Trustee upon request. The Servicer acknowledges and agrees that
the
Servicer shall bear any losses incurred with respect to Permitted Investments.
The amount of any such losses shall be immediately deposited by the Servicer
in
the Escrow Account out of the Servicer’s own funds, with no right to
reimbursement therefor.
The
Servicer shall deposit in the Escrow Account or Accounts within two (2) Business
Days of Servicer's receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms of this
Agreement; and
20
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property (unless otherwise held in a suspense account).
The
Servicer shall make withdrawals from an Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except as provided
in Section 4.07, the Servicer shall be entitled to retain any interest paid
on
funds deposited in an Escrow Account by the Qualified Depository.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums, Primary Mortgage Insurance Policy premiums, if
applicable, and comparable items;
(ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Protected Account in connection with an acquisition of REO
Property;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Servicer, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(viii) to
remove
funds placed in an Escrow Account in error by the Servicer; and
(ix) to
clear
and terminate the Escrow Account on the termination of this Agreement.
As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in an Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement
therefor.
21
Section
4.08 Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage Insurance
Policies, Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage or applicable law. To the extent that
the Mortgage does not provide for Escrow Payments, the Servicer shall determine
that any such payments are made by the Mortgagor when due. The Servicer assumes
full responsibility for the timely payment of all such bills and shall effect
timely payments of all such bills irrespective of the Mortgagor’s faithful
performance in the payment of same or the making of the Escrow Payments and
shall make Servicing Advances from its own funds to effect such payments to
the
extent necessary.
The
Servicer shall maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan for
which such coverage is herein required. Such coverage will be maintained until
the ratio of the current outstanding principal balance of the related Mortgage
Loan to the appraised value of the related Mortgaged Property, based on the
most
recent appraisal of the Mortgaged Property performed by a Qualified Appraiser,
such appraisal to be included in the Servicing File, is reduced to an amount
for
which ▇▇▇▇▇▇ ▇▇▇ no longer requires such insurance to be maintained. The
Servicer shall not cancel or refuse to renew any Primary Mortgage Insurance
Policy that is required to be kept in force under this Agreement unless a
replacement Primary Mortgage Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with a Qualified Insurer. The Servicer
shall not take any action which would result in noncoverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of
the
Servicer would have been covered thereunder. In connection with any assumption
or substitution agreement entered into or to be entered into pursuant to Section
6.01, the Servicer shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under the Primary Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy is terminated as a result of such assumption or substitution
of
liability, the Servicer shall obtain a replacement Primary Mortgage Insurance
Policy as provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Trust, claims to the insurer under any
Primary Mortgage Insurance Policy in a timely fashion in accordance with the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Protected Account, subject to withdrawal
pursuant to Section 4.05.
22
Section
4.09 Transfer
of Accounts.
The
Servicer may transfer the Protected Account or the Escrow Account to a different
Qualified Depository from time to time. The Servicer shall notify the Master
Servicer and Trustee of any such transfer.
Section
4.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan and (ii) the
outstanding principal balance of the Mortgage Loan. If the Mortgaged Property
is
in an area identified in the Federal Register by the Federal Emergency
Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Servicer will cause to
be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan and (iii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain on each
REO
Property, fire and hazard insurance with extended coverage in an amount which
is
at least equal to the maximum insurable value of the improvements which are
a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the Servicer
under any such policies other than amounts to be deposited in the Escrow Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with the Servicer’s normal
servicing procedures, shall be deposited in the Protected Account, subject
to
withdrawal pursuant to Section 4.05, unless otherwise held in a suspense account
by the Servicer. It is understood and agreed that no other additional insurance
need be required by the Servicer or the Mortgagor or maintained on property
acquired in respect of the Mortgage Loans, other than as provided in the ▇▇▇▇▇▇
Mae Guide or such applicable state or federal laws and regulations as shall
at
any time be in force and as shall require such additional insurance. All such
policies shall be endorsed with standard mortgagee clauses with loss payable
to
the Servicer and its successors and/or assigns and shall provide for at least
thirty days prior written notice of any cancellation, reduction in the amount
or
material change in coverage to the Servicer. The Servicer shall not interfere
with the Mortgagor’s freedom of choice in selecting either his insurance carrier
or agent; provided, however, that the Servicer shall not accept any such
insurance policies from insurance companies unless such companies currently
reflect a General Policy Rating in Best’s Key Rating Guide currently acceptable
to ▇▇▇▇▇▇ ▇▇▇ and are licensed to do business in the state wherein the property
subject to the policy is located. All insurance policies maintained pursuant
to
this Section 4.10 shall be maintained with a Qualified Insurer.
23
Section
4.11 Blanket
Hazard Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy with a
Qualified Insurer insuring against fire and hazards of extended coverage on
all
of the Mortgage Loans, then, to the extent such policy names the Trust as loss
payee and provides coverage in an amount equal to the amount required under
Section 4.10, and otherwise complies with the requirements of Section 4.10,
the
Servicer shall be deemed conclusively to have satisfied its obligations under
Section 4.10, it being understood and agreed that such blanket policy may
contain a deductible clause, in which case the Servicer shall, in the event
that
there shall not have been maintained on the related Mortgaged Property a policy
complying with Section 4.10, and there shall have been a loss which would have
been covered by such policy, deposit in the Protected Account the difference,
if
any, between the amount that would have been payable under a policy complying
with Section 4.10 and the amount paid under such blanket policy. Upon the
request of the Master Servicer, the Servicer shall cause to be delivered to
the
Master Servicer 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 Master
Servicer.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, with a Qualified Insurer, a blanket
Fidelity Bond and an errors and omissions insurance policy, with broad coverage
with responsible companies that meet the requirements of ▇▇▇▇▇▇ Mae on all
officers, employees and other persons acting in any capacity with regard to
the
Mortgage Loans and who handle funds, money, documents and papers relating to
the
Mortgage Loans. The Fidelity Bond and errors and omissions insurance shall
be in
the form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such persons. Such Fidelity Bond and errors
and omissions insurance shall also protect and insure the Servicer against
losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity Bond
and errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement. The minimum coverage
under any such Fidelity Bond and insurance policy shall be at least equal to
the
corresponding amounts acceptable to ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Guide or by
▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The Servicer shall, upon request of the
Master Servicer, deliver to the Master Servicer a certificate from the surety
and the insurer as to the existence of the Fidelity Bond and errors and
omissions insurance policy and shall obtain a statement from the surety and
the
insurer that such Fidelity Bond or insurance policy shall in no event be
terminated or materially modified without thirty days prior written notice
to
the Master Servicer. The Servicer shall notify the Master Servicer within five
Business Days of receipt of notice that such Fidelity Bond or insurance policy
will be, or has been, materially modified or terminated.
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of Trust or its designee. Any such Person or Persons holding such title
other than the Trust shall acknowledge in writing that such title is being
held
as nominee for the benefit of the Trust.
24
The
Servicer shall assume the responsibility for marketing each REO Property in
accordance with Accepted Servicing Practices. Thereafter, the Servicer shall
continue to provide certain administrative services to the Trust relating to
such REO Property as set forth in this Section 4.13. The Servicer
shall sell any REO Property as expeditiously as possible. In
addition, the REO Property must be sold within three years following the end
of
the calendar year of the date of acquisition if a REMIC election has been made
with respect to the arrangement under which the Mortgage Loans and REO Property
are held, unless (i) the Servicer shall have obtained an Opinion of Counsel
(at
the Servicer’s expense) to the effect that the holding by the related trust of
such Mortgaged Property subsequent to such three-year period (and specifying
the
period beyond such three-year period for which the Mortgaged Property may be
held) will not result in the imposition of taxes on “prohibited transactions” of
the related trust as defined in Section 860F of the Code, or cause the related
REMIC to fail to qualify as a REMIC, in which case the related trust may
continue to hold such Mortgaged Property (subject to any conditions contained
in
such Opinion of Counsel), or (ii) the Servicer shall have applied for, prior
to
the expiration of such three-year period, an extension of such three-year period
in the manner contemplated by Section 856(e)(3) of the Code, in which case
the
three-year period shall be extended by the applicable period. If a period longer
than three years is permitted under the foregoing sentence and is necessary
to
sell any REO Property, the Servicer shall report monthly to Master Servicer
as
to progress being made in selling such REO Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made, no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of the
related trust or sold in such a manner or pursuant to any terms that would
(i)
cause such Mortgaged Property to fail to qualify at any time as “foreclosure
property” within a meaning of Section 860G(a)(8) of the Code, (ii) subject the
related trust to the imposition of any federal or state income taxes on “net
income from foreclosure property” with respect to such Mortgaged Property within
the meaning of Section 860G(c) of the Code, or (iii) cause the sale of such
Mortgaged Property to result in the receipt by the related trust or any income
from non-permitted assets as described in Section 860F(a) (2)(B) of the Code,
unless the Servicer has agreed to indemnify and hold harmless the related trust
with respect to the imposition of any such taxes.
The
Servicer shall, either itself or through an agent selected by the Servicer,
and
in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide and Accepted Servicing Practices,
manage, conserve, protect and operate each REO Property. Each REO Disposition
shall be carried out by the Servicer at such price and upon such terms and
conditions as the Servicer deems to be in the best interest of the Trust and
as
are approved in writing by the Trust. The REO Disposition Proceeds from the
sale
of the REO Property shall be promptly deposited in the Protected Account. As
soon as practical thereafter, the expenses of such sale shall be paid and the
Servicer shall reimburse itself for any related Servicing Advances, or Monthly
Advances made pursuant to Section 5.03.
25
The
Servicer shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as may be required by the
circumstances. The Servicer shall make or cause the inspector to make a written
report of each such inspection. Such reports shall be retained in the Servicing
File and copies thereof shall be forwarded by the Servicer to the Master
Servicer and Custodian.
Section
4.14 Notification
of Adjustments.
With
respect to each Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related electronic data received on
the
Mortgage and Mortgage Note. The Servicer shall execute and deliver any and
all
necessary notices required under applicable law and the terms of the related
electronic data received on the Mortgage Note and Mortgage regarding the
Mortgage Interest Rate adjustments. The Servicer shall promptly, upon written
request by the Master Servicer, deliver to the Master Servicer the information
contained in such notifications and any additional applicable data regarding
such adjustments and the methods used to calculate and implement such
adjustments. Upon the discovery by the Servicer or the receipt of notice from
the Master Servicer that the Servicer has failed to adjust a Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note and Mortgage,
the
Servicer shall immediately deposit in the Protected Account from its own funds
the amount of any interest loss or deferral caused to the Trust
thereby.
Section
4.15 Compliance
with Applicable Laws.
All
requirements of any federal, state or local law applicable to the servicing
of
the Mortgage Loans will be complied with by the Servicer in all material
respects.
Section
4.16 Waiver
of Prepayment Charges.
The
Servicer
shall
not waive (or permit the Subservicer, any Reg AB Subservicer or any Reg AB
Subcontractor to waive) any Prepayment Charge unless: (i) such Prepayment Charge
is unenforceable in accordance with applicable law or the collection of such
related Prepayment Charge would otherwise violate applicable law, (ii) such
waiver is standard and customary in servicing similar mortgage loans to the
Mortgage Loans (including any waiver of a Prepayment Charge in connection with
a
refinancing of a Mortgage Loan related to a default or a reasonably foreseeable
default), or (iii) such waiver, in the reasonable judgment of the Servicer,
would maximize recovery of total proceeds from the Mortgage Loan, taking into
account the value of such Prepayment Charge and the related Mortgage Loan.
In no
event will the Servicer waive a Prepayment Charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default. If a Prepayment Charge is waived, but does not meet the
standards described above, then the Servicer is required to pay the amount
of
such waived Prepayment Charge from its own funds without any right of
reimbursement by remitting such amount to the Protected Account by the
Remittance Date.
Section
4.17 Optional
Purchase of Defaulted Mortgage Loans.
With
respect to any Mortgage Loan which as of the first day of a calendar quarter
is
delinquent in payment by 120 days or more or is an REO Property, the Seller
shall have the right to purchase such Mortgage Loan in accordance with the
terms
and conditions of Section 3.21 of the Pooling and Servicing Agreement, provided
however that such Mortgage Loan is still 120 days or more delinquent or is
an
REO Property as of the date of such purchase.
26
ARTICLE
V
PAYMENTS
TO THE
TRUST
Section
5.01 Remittances.
On
each
Remittance Date the Servicer shall remit, by wire transfer of immediately
available funds, to the Securities Administrator (a) all amounts deposited
in
the Protected Account as of the close of business on the related Determination
Date (net of charges against or withdrawals from the Protected Account pursuant
to Section 4.05), plus (b) all amounts, if any, which the Servicer is obligated
to distribute pursuant to Section 5.03, minus (c) any amounts attributable
to
Principal Prepayments received after the end of the preceding month which
amounts shall be remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Protected Account in
connection with such Principal Prepayment in accordance with Section 4.04(ix);
minus (d) any amounts attributable to Monthly Payments collected but due on
a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, which amounts shall be remitted on the related Remittance Date next
succeeding the Due Period for such amounts.
With
respect to any remittance made by the Servicer after the Remittance Date on
which such payment was due, the Servicer shall pay to the Securities
Administrator interest on any such late payment at an annual rate equal to
the
Prime Rate, adjusted as of the date of each change, but in no event greater
than
the maximum amount permitted by applicable law. Such interest shall be deposited
in the Protected Account by the Servicer on the date such late payment is made
and shall cover the period commencing with the day following the Business Day
on
which such payment was due and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with
the
distribution payable on the next succeeding related Remittance Date. The payment
by the Servicer of any such interest shall not be deemed an extension of time
for payment or a waiver of any Event of Default by the Servicer.
Section
5.02 Statements
to the Master Servicer, Securities Administrator and Depositor.
(a)
Not
later than the tenth (10th) calendar day, or if such day is not a Business
Day,
the first Business Day immediately preceding the tenth calendar day of the
month
of the related Remittance Date, the Servicer shall furnish to the Securities
Administrator, a monthly remittance advice in the format set forth in Exhibit
D
attached hereto (or in such other format mutually agreed to by the Servicer
and
the Securities Administrator), with regard to monthly loan remittance data
and
Exhibit E (or in such other format mutually agreed to by the Servicer and the
Securities Administrator) with respect to defaulted mortgage loans, with a
trial
balance report attached thereto, and such other loan level information
reasonably available to the Servicer and requested by the Securities
Administrator. The Servicer shall also furnish to the Securities Administrator
(in such format mutually agreed to by the Servicer and the Securities
Administrator) a monthly report detailing loan level Prepayment Charges
collected and/or waived by the Servicer in accordance with Section 4.16.
27
(b)
The
Servicer
shall promptly notify the Master Servicer or the Depositor, as applicable,
(i)
of any legal proceedings pending against the Servicer of the type described
in
Item 1117 (§
229.1117) of
Regulation AB and (ii) if the Servicer shall become (but only to the extent
not
previously disclosed to the Master Servicer) at any time an affiliate of any
of
the parties listed on Exhibit I to this Agreement.
For
the
purpose of satisfying the reporting obligations under the Exchange Act with
respect to the issuance of asset-backed securities, the Servicer
shall
provide (or shall cause any Subservicer to provide) to the
Master Servicer and the Depositor prompt
notice of the occurrence of any of the following: any event of default under
the
terms of this Agreement, any merger, consolidation or sale of substantially
all
of the assets of the Servicer,
the
Servicer’s
engagement of any Reg AB Subservicer, Reg AB Subcontractor or vendor to perform
or assist in the performance of any of the Servicer’s
obligations under this Agreement, any material litigation or government
proceedings involving the Servicer
or Subservicer,
and any
affiliation or other significant relationship between the Servicer
and
other transaction parties.
(c)
Not
later than ten days prior to the deadline for the filing of any distribution
report on Form 10-D in respect of any Securitization Transaction that includes
any of the Mortgage Loans serviced by the Servicer or any Subservicer, the
Servicer or such Subservicer, as applicable, shall, to the extent the Servicer
or such Subservicer has knowledge, provide to the party responsible for filing
such report (including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all information, data
and
materials related thereto as may be required to be included in the related
distribution report on Form 10-D (as specified in the provisions of Regulation
AB referenced below):
(i) Any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) Material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) Information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases) and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
Section
5.03 Monthly
Advances by the Servicer.
28
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Protected Account from its own funds or from amounts held for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the immediately preceding Determination Date or which were deferred
pursuant to Section 4.01. Any amounts held for future distribution and so used
shall be replaced by the Servicer by deposit in the Protected Account on or
before any future Remittance Date if funds in the Protected Account on such
Remittance Date shall be less than payments to the Trust required to be made
on
such Remittance Date. The Servicer's obligation to make such Monthly Advances
as
to any Mortgage Loan will continue through the last Monthly Payment due prior
to
the payment in full of the Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan; provided,
however, that such obligation shall cease if the Servicer determines, in its
sole reasonable opinion, that advances with respect to such Mortgage Loan are,
or would constitute, a Nonrecoverable Advance.
Section
5.04 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Servicer pursuant to a deed-in-lieu of foreclosure, the Servicer shall submit
to
the Master Servicer a liquidation report in the format set forth in Exhibit
F
attached hereto (or in such other format mutually agreed to by the Servicer
and
Master Servicer) with respect to such Mortgaged Property and all supporting
documentation reasonably required by the Master Servicer. The Servicer shall
also provide reports on the status of REO Property containing such information
as Master Servicer may reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Assumption
Agreements.
The
Servicer shall, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of a Mortgaged Property (whether by absolute
conveyance or by contract of, sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any “due-on-sale”
clause to the extent permitted by law; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law or the terms of the
Mortgage Note from doing so or if the exercise of such rights would impair
or
threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such “due-on-sale” clause, the Servicer, with the
approval of the Master Servicer, will enter into an assumption agreement with
the person to whom the Mortgaged Property has been conveyed or is proposed
to be
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. If an assumption is allowed pursuant to this Section 6.01,
the
Servicer, with the prior consent of the primary mortgage insurer, if any, is
authorized to enter into a substitution of liability agreement with the person
to whom the Mortgaged Property has been conveyed or is proposed to be conveyed
pursuant to which the original mortgagor is released from liability and such
Person is substituted as mortgagor and becomes liable under the related Mortgage
Note. Any such substitution of liability agreement shall be in lieu of an
assumption agreement.
29
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of the ▇▇▇▇▇▇ ▇▇▇ Guide.
With respect to an assumption or substitution of liability, the Mortgage
Interest Rate borne by the related Mortgage Note and the amount of the Monthly
Payment may not be changed. The Servicer shall notify the Master Servicer that
any such substitution of liability or assumption agreement has been completed
and will forward to the Custodian the original of any such substitution of
liability or assumption agreement, which document shall be added to the related
Mortgage Loan Documents and shall, for all purposes, be considered a part of
such related mortgage file to the same extent as all other documents and
instruments constituting a part thereof. All fees collected by the Servicer
for
entering into an assumption or substitution of liability agreement shall belong
to the Servicer.
Notwithstanding
the foregoing paragraphs of this section or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of
a
Mortgage Loan by operation of law or any assumption which the Servicer may
be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 6.01, the term “assumption” is deemed to also include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
6.02 Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer will immediately notify
the
Custodian with a certification and request for release by a Servicing Officer
in
the form of Exhibit G attached hereto, which certification shall include a
statement to the effect that all amounts received in connection with such
payment which are required to be deposited in the Protected Account pursuant
to
Section 4.04 have been so deposited, and a request for delivery to the Servicer
of the Mortgage Loan Documents held by the Custodian. Upon receipt of such
certification and request by the Custodian, the Trustee shall promptly release
or cause the Custodian to promptly release the related Mortgage Loan Documents
to the Servicer and the Servicer shall prepare and deliver for execution by
the
Trustee or at the Trustee’s option execute under the authority of a power of
attorney delivered to the Servicer by the Trustee any satisfaction or release.
No expense incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the Protected Account.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Trust may have under the mortgage instruments,
the Servicer, upon written demand, shall remit to the Securities Administrator
within two Business Days the shortfall required to make payment in full on
the
outstanding principal balance of the related Mortgage Loan by deposit thereof
in
the Protected Account. The Servicer shall maintain the Fidelity Bond and errors
and omissions insurance insuring the Servicer against any loss it may sustain
with respect to any Mortgage Loan not satisfied in accordance with the
procedures set forth herein.
30
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled to
withdraw from the Protected Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Servicer’s Servicing Fee.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 6.01, late payment charges and other ancillary fees (excluding
Prepayment Charges) shall be retained by the Servicer to the extent not required
to be deposited in the Protected Account. The Servicer shall be required to
pay
all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for.
Section
6.04 Report
on Compliance and Attestation.
(a) On
or
before March 1st of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Master Servicer, the Depositor and the Securities Administrator a report
(in form and substance reasonably satisfactory to the Master Servicer, the
Depositor and the Securities Administrator) regarding the Servicer’s assessment
of compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122 of
Regulation AB. Such report shall be addressed to the Master Servicer, the
Depositor and the Securities Administrator and signed by an authorized officer
of the Servicer, and shall address each of the applicable Servicing Criteria
specified on a certification substantially in the form of Exhibit H hereto
delivered to the Master Servicer, the Depositor and the Securities Administrator
concurrently with the execution of this Agreement;
(ii) deliver
to the Master Servicer, the Depositor and the Securities Administrator a report
of a registered public accounting firm reasonably acceptable to the Master
Servicer, the Depositor and the Securities Administrator that attests to, and
reports on, the assessment of compliance made by the Servicer and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
of
1933, as amended (the “Securities Act”) and the Exchange Act;
(iii) cause
the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor determined
by
the Servicer pursuant to Section 8.04(c) to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Master Servicer, the Depositor and the Securities Administrator an assessment
of
compliance and accountants’ attestation as and when provided in paragraphs (a)
and (b) of this Section; and
(iv) deliver
to the Master Servicer, the Depositor, the Securities Administrator and any
other Person that will be responsible for signing the certification (a “Sarbanes
Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”))
on behalf of the trust fund with respect to the transaction relating to this
Agreement a certification signed by the appropriate officer of the Company
in
the form attached hereto as Exhibit J.
31
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. None
of
the Master Servicer, the Depositor or the Securities Administrator will request
delivery of a certification under clause (a)(iv) above unless a Depositor is
required under the Exchange Act to file an annual report on Form 10-K with
respect to the trust fund.
(b) Each
assessment of compliance provided by the Subservicer or a Reg AB Subservicer
pursuant to Section 6.04(a)(i) shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit H hereto
delivered to the Master Servicer, the Depositor and the Securities Administrator
concurrently with the execution of this Agreement or, in the case of Reg AB
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Reg AB Subcontractor
pursuant to Section 6.04(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section
8.04.
Section
6.05 Servicer
Compliance Statement.
On
or
before March 1st of each calendar year, commencing in 2007, the Servicer shall
deliver to the Master Servicer, the Depositor and the Securities Administrator
a
statement of compliance addressed to the Master Servicer, the Depositor and
the
Securities Administrator and signed by an authorized Servicing Officer, to
the
effect that (i) a review of the Servicer’s activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement during such period has been made under such Servicing
Officer’s supervision, and (ii) to the best of such Servicing Officer’s
knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status thereof.
Section
6.06 Master
Servicer’s Right to Examine Servicer Records.
The
Master Servicer shall have the right to examine and audit, at its expense,
upon
reasonable notice to the Servicer, during business hours or at such other times
as might be reasonable under applicable circumstances, any and all of the books,
records, documentation or other information of the Servicer, or held by another
for the Servicer or on its behalf or otherwise, which relate to the servicing
of
the Mortgage Loans by Servicer.
The
Servicer shall provide to the Master Servicer and any supervisory agents or
examiners representing a state or federal governmental agency having
jurisdiction over the Servicer access to any documentation regarding the
Mortgage Loans in the possession of the Servicer which may be required by any
applicable regulations. Such access shall be afforded upon reasonable request,
during normal business hours and at the offices of the Servicer, and in
accordance with the applicable federal or state government
regulations.
32
Section
6.07 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined in Section 860F(a)(2) of the
Code and the tax on “contribution” to a REMIC set forth in Section 860G(d) of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of any
such tax.
Section
6.08 Non-solicitation.
The
Servicer shall not conduct any solicitation specifically targeted to the
Mortgagors for the purpose of inducing or encouraging the early prepayment
or
refinancing of the related Mortgage Loans. It is understood and agreed that
promotions undertaken by the Servicer or any agent or affiliate of the Servicer
which are directed to the general public at large, including mass mailings
based
on commercially acquired mailing lists, newspaper, internet, radio and
television advertisements, shall not constitute solicitation under this Section
6.08.
Section
6.09 Reporting
Requirements of the Commission and Indemnification.
The
Servicer, the Depositor and the Master Servicer acknowledge and agree that
the
purpose of Sections 3.01(g), 5.02(b) and (c), 6.04, 6.05 and 8.04 of this
Agreement is to facilitate compliance by the Depositor and the Master Servicer
with the provisions of Regulation AB and related rules and regulations of the
Commission. None of the Master Servicer or the 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 Servicer acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made by the Master
Servicer or the Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection
with the
transaction relating to this Agreement,
the
Servicer shall cooperate fully with the Master Servicer and the Depositor to
deliver to the Master Servicer and the Depositor (including any of their
respective assignees or designees), any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Master Servicer or the Depositor to permit the Master
Servicer or the Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Servicer, the Subservicer, any
Reg AB Subservicer and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Master Servicer or the Depositor to be
necessary in order to effect such compliance.
33
The
Master Servicer and the Depositor (including any of their respective assignees
or designees) shall cooperate with the Servicer by providing timely notice
of
requests for information under these provisions and by reasonably limiting
such
requests to information required, in the Master Servicer’s or the Depositor’s
reasonable judgment, to comply with Regulation AB.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01 Servicer
Shall Provide Information as Reasonably Required.
The
Servicer shall furnish to the Master Servicer upon reasonable request, during
the term of this Agreement, such periodic, special or other reports or
information, whether or not provided for herein, as shall be reasonably
necessary with respect to the purposes of this Agreement, including (1) copies
of the Servicer’s annual financials, (2) the Servicer’s authorized officer list
and (3) copies of the Servicer’s insurance policies. The Servicer may negotiate
with the Master Servicer for a fee (any such fee to be payable by the Trust)
for
providing such report or information, unless (i) the Servicer is required to
supply such report or information pursuant to any other section of this
Agreement, or (ii) the report or information has been requested in connection
with Internal Revenue Service or other regulatory agency requirements. All
such
reports or information shall be provided by and in accordance with all
reasonable instructions and directions given by the Master Servicer.
ARTICLE
VIII
THE
SERVICER
Section
8.01 Additional
Indemnification by the Servicer.
(a) The
Servicer shall indemnify the Master Servicer, the Depositor, each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties and the Trustee (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 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:
(i)(A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Article 8.01 by or on behalf
of the Servicer, or provided under this Article 8.01 by or on behalf of the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor (collectively,
the “Servicer Information”), or (B) the omission or alleged omission to state in
the Servicer Information a material fact required to be stated in the Servicer
Information or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
by
way of clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Servicer Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Servicer Information or any portion thereof is presented together
with or separately from such other information;
34
(ii) any
failure by the Servicer, the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article 8.01, including
any failure by the Servicer to identify pursuant to Section 8.04(c) any Reg
AB
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB;
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
3.01(g) and made as of a date prior to the Closing Date, to the extent that
such
breach is not cured by the Closing Date,;
(iv) any
failure by the Servicer, the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor to deliver any information, report, certification, accountants’
letter or other material when and as required under this Agreement, including
any report under Sections 6.04 or 6.05 or any failure by the Servicer to
identify pursuant to Section 8.04(c) any Reg AB Subcontractor that is a
Participating Entity; or
(v) the
failure of the Servicer to perform its duties and service the Mortgage Loans
in
material compliance with the terms of this Agreement.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Servicer shall promptly reimburse the Master Servicer, the Depositor and
the
Trustee, 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 the transaction relating to this Agreement, 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 transaction, for all costs reasonably incurred by
each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the Servicer,
the Subservicer, any Reg AB Subservicer or any Reg AB
Subcontractor.
(b) (i)
Any
failure by the Servicer, the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article 8.01, or any
breach by the Servicer of a representation or warranty set forth in Section
3.01(g) made as of a date prior to the Closing Date, to the extent that such
breach is not cured by the Closing Date, shall, except as provided in clause
(ii) of this paragraph, immediately and automatically, without notice or grace
period, constitute an Event of Default with respect to the Servicer under this
Agreement, and shall entitle the Company, in its sole discretion to terminate
the rights and obligations of the Servicer as servicer under this Agreement
without payment (notwithstanding anything in this Agreement) of any compensation
to the Servicer (and if the Company is servicing any of the Mortgage Loans
in a
Securitization Transaction, appoint a successor servicer reasonably acceptable
to any Master Servicer for such Securitization Transaction); provided that
to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
35
(ii)
Any
failure by the Servicer, the Subservicer, any Reg AB Subservicer or any Reg
AB
Subcontractor to deliver any information, report, certification or accountants’
letter when and as required under Section 6.04 or 6.05, including (except as
provided below) any failure by the Servicer to identify pursuant to Section
8.04(c) any Reg AB Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, which continues unremedied
for
ten calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Servicer under this
Agreement, and shall entitle the Master Servicer, in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement without payment (notwithstanding anything in this Agreement to the
contrary) of any compensation to the Servicer; provided that to the extent
that
any provision of this Agreement expressly provides for the survival of certain
rights or obligations following termination of the Servicer as servicer, such
provision shall be given effect.
The
Master Servicer shall not be entitled to terminate the rights and obligations
of
the Servicer pursuant to this subparagraph (b)(ii) if a failure of the Servicer
to identify a Reg AB Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB was attributable solely to
the
role or functions of such Reg AB Subcontractor with respect to mortgage loans
other than the Mortgage Loans.
(iii)
The
Servicer shall promptly reimburse the Master Servicer (or any designee of the
Master Servicer) for all reasonable expenses incurred by the Master Servicer
(or
such designee), as such are incurred, in connection with the termination of
the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor and the transfer
of servicing of the Mortgage Loans to a successor subservicer. The provisions
of
this paragraph shall not limit whatever rights the Master Servicer may have
under other provisions of this Agreement or otherwise, whether in equity or
at
law, such as an action for damages, specific performance or injunctive
relief.
(c) The
Servicer agrees to indemnify the Trustee, the Master Servicer, their respective
successors and assigns, and any agent of the Trustee or Master Servicer (each
an
“Indemnified Person”) and hold each such Indemnified Person harmless from and
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that such Indemnified Person may sustain in any way related to the failure
of
the Servicer to perform its duties and service the Mortgage Loans in compliance
with the terms of this Agreement and for breach of any representation, warranty
or covenant of the Servicer contained herein. The Servicer shall immediately
notify the Master Servicer or Trustee or other Indemnified Person if a claim
is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Master Servicer) the defense
of
any such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which
may
be entered against it or such other Indemnified Person in respect of such claim
but failure to so notify the Master Servicer and such other Indemnified Person
shall not limit its obligations hereunder. The Servicer agrees that it will
not
enter into any settlement of any such claim without the consent of the Master
Servicer and such other Indemnified Person unless such settlement includes
an
unconditional release of the Master Servicer and such other Indemnified Person
from all liability that is the subject matter of such claim. The Servicer shall
be entitled to reimbursement of any such costs and expenses from funds in the
Protected Account, unless such claim relates to a matter for which the Servicer
is required to indemnify the Indemnified Person(s).
36
(d) The
provisions of this Section 8.01 shall survive termination of this
Agreement.
Section
8.02 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, or which is a HUD-approved
mortgagee whose primary business is in origination and servicing of first lien
1-4 family mortgage loans, (iii) which is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing and (iv) which is acceptable to the Master
Servicer. Furthermore, in the event the Servicer transfers or otherwise disposes
of all or substantially all of its assets to an affiliate of the Servicer,
such
affiliate shall satisfy the condition above, and shall also be fully liable
to
the Trust for all of the Servicer's obligations and liabilities hereunder.
The
Master Servicer shall have the ability to terminate the successor Servicer
if
such successor Servicer is not reasonably acceptable to the Master
Servicer.
Section
8.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Trust for any action taken or
for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment made in good faith; provided, however,
that
this provision shall not protect the Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform
its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed under this Agreement.
Notwithstanding Section 8.01(a), the Servicer shall not be required to
indemnify, or otherwise be liable to, the Master Servicer, the Trustee or the
Trust or those referenced above for any claims, losses, damages, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses which the Trust is required to indemnify the Servicer
for pursuant to Sections 8.01(b). The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of
any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to
its
duties to service the Mortgage Loans in accordance with this Agreement and
which
in its opinion may involve it in any expenses or liability; provided, however,
that the Servicer may, with the consent of the Master Servicer, undertake any
such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto. In such event, the
reasonable legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Trust will
be
liable, the Servicer shall be entitled to reimbursement of such amounts from
the
Protected Account.
37
Section
8.04 Subservicing
Agreements and Successor Subservicer.
(a)
The
Servicer shall not hire or otherwise utilize the services of the Subservicer
or
any Reg AB Subservicer to fulfill any of the obligations of the Servicer as
servicer under this Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section 8.04 and the proposed Reg AB Subservicer (i)
is
an institution which is an approved ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac Seller/Servicer
as
indicated in writing and (ii) represents and warrants that it is in compliance
with the laws of each state as necessary to enable it to perform its obligations
under such subservicing agreement. The Servicer shall not hire or otherwise
utilize the services of any Reg AB Subcontractor, and shall not permit the
Subservicer or any Reg AB Subservicer to hire or otherwise utilize the services
of any Reg AB Subcontractor, to fulfill any of the obligations of the Servicer
as servicer under this Agreement unless the Servicer complies with the
provisions of paragraph (c) of this Section 8.04.
(b)
It
shall not be necessary for the Servicer to seek the consent of the Master
Servicer or the Trustee to the utilization of the Subservicer or any Reg AB
Subservicer. For purposes of this Agreement, the Servicer shall be deemed to
have received payments on Mortgage Loans immediately upon receipt by Subservicer
or any Reg AB Subservicer of such payments. Each subservicing agreement shall
provide that a successor Servicer shall have the option to terminate such
agreement without payment of any fees if the predecessor Servicer is terminated
or resigns. The Servicer shall cause Subservicer or any Reg AB Subservicer
used
by the Servicer (or by the Subservicer or any Reg AB Subservicer) to comply
with
the provisions of this Section 8.04 and with Sections 3.01(g), 5.02(b), 6.04(a),
6.04(b), 6.05 and 8.01 and Exhibit H of this Agreement to the same extent as
if
the Subservicer or Reg AB Subservicer were the Servicer. The Servicer shall
be
responsible for obtaining from the Subservicer or any Reg AB Subservicer and
delivering to the Master Servicer any subservicer compliance statement required
to be delivered by the Subservicer or any Reg AB Subservicer under Section
6.05,
any reports on assessment of compliance and attestation required to be delivered
by the Subservicer or any Reg AB Subservicer under Section 6.04 and any
certification required to be delivered under 6.04 to the Person that will be
responsible for signing the Sarbanes Certification under Section 6.04 as and
when required to be delivered hereunder.
38
(c)
It
shall not be necessary for the Servicer to seek the consent of the Master
Servicer or the Trustee to the utilization of any Reg AB Subcontractor. The
Servicer shall promptly upon request provide the Master Servicer a written
description (in form and substance satisfactory to the Master Servicer) of
the
role and function of each Reg AB Subcontractor utilized by the Servicer or
any
Subservicer, specifying (A) the identity of each such Reg AB Subcontractor,
(B)
which (if any) of such Reg AB Subcontractors are Participating Entities, and
(C)
which elements of the servicing criteria set forth under Item 1122(d) of
Regulation AB will be addressed in assessments of compliance provided by each
Reg AB Subcontractor identified pursuant to clause (B) of this
paragraph.
As
a
condition to the utilization of any Reg AB Subcontractor determined to be a
Participating Entity, the Servicer shall cause any such Reg AB Subcontractor
used by the Servicer (or by the Subservicer or any Reg AB Subservicer) for
the
benefit of the Master Servicer to comply with the provisions of Sections
3.01(g), 5.02(b), 6.04(a), 6.04(b), 6.05 and 8.01 and Exhibit H of this
Agreement to the same extent as if such Reg AB Subcontractor were the Servicer.
The Servicer shall be responsible for obtaining from each Reg AB Subcontractor
and delivering to Master Servicer any assessment of compliance and attestation
required to be delivered by such Reg AB Subcontractor under Sections 6.04 and
6.05, in each case as and when required to be delivered.
Section
8.05 Servicer
Not to Resign.
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual consent of the Servicer and the
Master Servicer or upon the determination that its duties hereunder are no
longer permissible under applicable law and such incapacity cannot be cured
by
the Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Master Servicer which Opinion of Counsel shall be in form and substance
reasonably acceptable to the Master Servicer. No such resignation shall become
effective until a successor shall have assumed the Servicer’s responsibilities
and obligations hereunder in the manner provided in Section 11.01.
Section
8.06 No
Transfer of Servicing.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, the Servicer acknowledges that the Master Servicer has acted in
reliance upon the Servicer’s independent status, the adequacy of its servicing
facilities, plan, personnel, records and procedures, its integrity, reputation
and financial standing and the continuance thereof. Without in any way limiting
the generality of this section, the Servicer shall not either assign this
Agreement or the servicing hereunder or delegate its rights or duties hereunder
or any portion thereof, or sell or otherwise dispose of all or substantially
all
of its property or assets not in the ordinary course of business, without the
prior written approval of the Master Servicer, which approval shall not be
unreasonably withheld.
39
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without (i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Master Servicer, then the Master Servicer shall have the right to
terminate this Agreement, without any payment of any penalty or damages and
without any liability whatsoever to the Servicer (other than with respect to
accrued but unpaid Servicing Fees and Monthly Advances and Servicing Advances
remaining unpaid) or any third party.
Section
8.07 Anti-Money
Laundering.
To
help
fight the funding of terrorism and money laundering activities, the Trustee
will
obtain, verify and record information that identifies individuals or entities
that establish a relationship or open an account with the Trustee. The Trustee
will ask for the name, address, tax identification number and other information
that will allow the Trustee to identify the individual or entity who is
establishing the relationship or opening the account. The Trustee may also
ask
for formation documents such as articles of incorporation, an offering
memorandum or other identifying documents to be provided.
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
Each
of
the following shall constitute an Event of Default on the part of the
Servicer:
(i) any
failure by the Servicer to remit to the Securities Administrator any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of three (3) Business Days after written notice thereof (it being
understood that this subparagraph shall not affect Servicer’s obligation
pursuant to Section 5.01 to pay default interest on any remittance received
by
the Securities Administrator after the Business Day on which such payment was
due); or
(ii) any
failure by the Servicer to duly perform, within the required time period, its
obligations to provide any certifications required pursuant to Sections 6.04
or
6.05 (including with respect to such certifications required to be provided
by
the Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor pursuant
to
Section 8.04), except as provided below, which failure continues unremedied
for
a period of ten (10) days from the date of delivery required with respect to
such certification; or
(iii) except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, its obligations
to
provide any other information, data or materials required to be provided
hereunder pursuant to Sections 3.01(g) and 8.04 (except as provided below),
including any items required to be included in any Exchange Act report;
or
(iv) any
failure by the Servicer duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Servicer set forth
in
this Agreement (other than with respect to Sections 6.04, 6.05 and 6.09), the
breach of which has a material adverse effect and which continue unremedied
for
a period of sixty days (except that such number of days shall be fifteen in
the
case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement and such failure shall be deemed to have a
material adverse effect) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the
Master Servicer; or
40
(v) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(vi) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(vii) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for two Business Days; or
(viii) the
Servicer ceases to meet the qualifications of a ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
servicer; or
(ix) the
Servicer attempts, without the consent of the Master Servicer, to sell or
otherwise dispose of all or substantially all of its property or assets not
in
the ordinary course of business or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof except as otherwise permitted herein;
(x) the
Servicer ceases to be qualified to transact business in any jurisdiction where
it is currently so qualified, but only to the extent such non-qualification
materially and adversely affects the Servicer’s ability to perform its
obligations hereunder;
(xi) failure
by the Servicer to duly perform, within the required time period, its
obligations under Section 6.04, Section 6.05 or Section 6.09 of this Agreement
which failure continues unremedied for a period of fifteen (15) days after
the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by any party to this Agreement or by
any
master servicer responsible for master servicing the Mortgage Loans pursuant
to
a securitization of such Mortgage Loans;
(xii) the
Servicer, as applicable, or the Subservicer, any Reg AB Subservicer or any
Reg
AB Subcontractor ceases to be (a) licensed to service first lien residential
mortgage loans in any jurisdiction in which a Mortgaged Property is located
and
such licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but in each case only to the
extent it materially and adversely affects the Servicer’s ability to perform its
obligations hereunder; or
41
(xiii) the
Subservicer, any Reg AB Subservicer or any Reg AB Subcontractor fails to meet
the eligibility criteria set forth in the last sentence of Section
8.02.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, the Master Servicer, by notice in writing to the Servicer may, in
addition to whatever rights the Master Servicer may have under Section 8.01
and
at law or equity to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same; provided that Servicer shall be entitled
to all outstanding servicing compensation and unreimbursed advances. The rights
and obligations of the Servicer pursuant to subparagraphs (ii) and (iii) above
shall not be terminated if a failure of the Servicer to identify a Reg AB
Subcontractor as a Participating Entity was attributable solely to the role
or
functions of such Reg AB Subcontractor with respect to mortgage loans other
than
the Mortgage Loans.
From
and
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 11.01. Upon written request from the Master Servicer, the
Servicer shall prepare, execute and deliver, any and all documents and other
instruments, place in such successor’s possession all Servicing Files, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Servicer’s sole expense. The Servicer agrees to reasonably
cooperate with the Master Servicer and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Protected Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans.
If
an
Event of Default occurs, the Servicer shall provide written notice of such
Event
of Default to the Master Servicer.
Section
9.02 Waiver
of Defaults.
The
Master Servicer may waive, only by written notice, any default by the Servicer
in the performance of its obligations hereunder and its consequences. Upon
any
such waiver of a past default, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
X
TERMINATION
Section
10.01 Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon
the earliest to occur of the following: (i) the later of the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property and the remittance of all funds
due
hereunder; (ii) by 30 days’ written mutual consent of the Servicer and the
Master Servicer; and (iii) termination by the Master Servicer pursuant to
Section 9.01. In no event shall the Servicer be entitled to any termination
fee
or other compensation with respect to any termination of this Agreement for
cause or the Servicer’s rights hereunder, in whole or in part.
42
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Servicer.
Upon
termination of the Servicer’s responsibilities and duties under this Agreement
pursuant to Sections 6.04, 8.01, or 9.01(iv) or (v), the Master Servicer shall
(i) succeed to and assume all of the Servicer’s responsibilities, rights, duties
and obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.02 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement prior to the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Master Servicer may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as the Master Servicer and such successor shall agree. In the event that
the Servicer’s duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Servicer
shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof with
the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor; provided, however,
that a successor servicer shall be in place within 180 days of the date the
Servicer acquires knowledge of such termination. Except as provided for in
the
preceding sentence, the resignation or removal of the Servicer pursuant to
the
aforementioned sections shall not become effective until a successor shall
be
appointed pursuant to this section and shall in no event relieve the Servicer
of
the representations and warranties made pursuant to Article III and the remedies
available to the Master Servicer or other indemnified persons under Section
8.01, it being understood and agreed that the provisions of such Article III
and
Section 8.01 shall be applicable to the Servicer notwithstanding any such
resignation or termination of the Servicer, or the termination of this
Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer, the Seller, the Trustee and the Master Servicer an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement. Any termination or resignation of the Servicer or termination
of this Agreement pursuant to Section 8.04, 9.01 or 10.01 shall not affect
any
claims that the parties hereto may have against the Servicer arising prior
to
any such termination or resignation.
43
The
Servicer shall promptly deliver to the successor the funds in the Protected
Account and the Escrow Account and the Servicing Files and related documents
and
statements held by it hereunder and the Servicer shall account for all funds.
The Servicer shall execute and deliver such instruments and do such other things
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Servicer.
Section
11.02 Amendment.
This
Agreement may be amended from time to time by the Master Servicer, the Servicer
and the Trustee with the prior written consent of the Depositor; provided that
the party requesting such amendment shall, at its own expense, provide the
Master Servicer, the Trustee and the Depositor with an Opinion of Counsel that
such amendment will not materially adversely affect the interest of the
Certificateholders in the Mortgage Loans. Any such amendment shall be deemed
not
to adversely affect in any material respect any the interest of the
Certificateholders in the Mortgage Loans if the Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce, qualify or withdraw the then current rating assigned
to
the certificates (and any Opinion of Counsel received by the Master Servicer,
the Trustee and the Depositor in connection with any such amendment may rely
expressly on such confirmation as the basis therefor); provided, however, this
Agreement may be amended by the Master Servicer, the Servicer and the Trustee
from time to time with delivery of an Opinion of Counsel described above to
evidence that, in the judgment of the Company and its counsel, such amendment
is
necessary to comply with any rules promulgated by the Commission and any
interpretations thereof by the staff of the Commission.
Section
11.03 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF
OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
11.04 Notices.
Any
demands, notices or other communications permitted or required hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
(i) if
to the
Servicer with respect to servicing issues:
MortgageIT,
Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
44
(ii) if
to the
Seller:
MortgageIT,
Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if
to the
Master Servicer and Securities Administrator:
▇▇▇▇▇
Fargo Bank, N.A.
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇
, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or,
in
the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
21045) (Attention: Corporate Trust Services - MortgageIT Trust 2006-1),
facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be
furnished to the other parties hereto in writing;)
(iv) if
to the
Trustee, the Corporate Trust Office:
Deutsche
Bank National Trust Company
▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Trust Administration - MG0601
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice, or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the address
(as
evidenced, in the case of registered or certified mail, by the date noted on
the
return receipt).
Section
11.05 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement.
Section
11.06 Exhibits
and Schedules.
The
exhibits, schedules and other addenda and supplements to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this
Agreement.
Section
11.07 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
45
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(vi) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
11.08 Reproduction
of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.09 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by law, each
party agrees to keep all non-public information regarding the other party
strictly confidential, and to use all such information solely in order to
effectuate the purpose of this Agreement; provided, however, the Trustee and
Master Servicer may disclose on a confidential basis any such information to
its
agents, auditors and attorneys in connection with its performance of its
responsibilities hereunder and under the Pooling and Servicing
Agreement.
46
Section
11.10 Reserved.
Section
11.11 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership or
joint venture between the parties hereto and the services of the Servicer shall
be rendered as an independent contractor and not as agent for the Master
Servicer or Trustee.
Section
11.12 Counterparts;
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.05, this Agreement shall inure
to
the benefit of and be binding upon the Servicer, Trustee, Seller and Master
Servicer and their respective successors and assigns.
Section
11.13 Entire
Agreement.
Each
of
the Servicer, Master Servicer, Trustee and Seller acknowledges that no
representations, agreements or promises were made to it by the other party
or
any of its employees other than those representations, agreements or promises
specifically contained herein. This Agreement sets forth the entire
understanding between the parties hereto with respect to the matters set forth
herein, and shall be binding upon all successors of both parties.
Section
11.14 Further
Agreements.
The
Servicer, Master Servicer, Trustee and Seller each agrees to execute and deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purpose
of
this Agreement.
Section
11.15 Third
Party Beneficiary.
For
purposes of this Agreement, the Certificateholders shall be considered a third
party beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Certificateholder as if it were a direct party to this
Agreement.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Depositor and the Master Servicer receive the benefit of the
provisions of this Agreement as an intended third party beneficiary of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the Depositor as if it was a party to this Agreement, and the
Depositor shall have the same rights and remedies to enforce the provisions
of
this Agreement as if it was a party to this Agreement. Notwithstanding the
foregoing, all rights and obligations of the Depositor hereunder (other than
the
right to indemnification) shall terminate upon the termination of the trust
fund.
47
IN
WITNESS WHEREOF, the Servicer, Master Servicer and Trustee have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date and year first above written.
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master
Servicer
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Vice President
MORTGAGEIT,
INC.,
as
Servicer
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Chief Financial Officer
MORTGAGEIT,
INC.,
as
Seller
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
General Counsel and Secretary
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
48
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
Available
Upon Request
A-1
EXHIBIT
B
FORMS
OF
PROTECTED ACCOUNT CERTIFICATIONS
PROTECTED
ACCOUNT CERTIFICATION
____________________,
20 _______
MortgageIT,
Inc. hereby certifies that it has established the account described below as
a
Protected Account pursuant to Section 4.04 of the Servicing Agreement, dated
as
of ____________________, 20________,.
|
Title
of Account:
|
Protected
Account in trust for “Deutsche Bank National Trust Company, as trustee of
MortgageIT Trust 2006-1” - P &
I
|
|
Address
of office or branch of
the
Servicer at which Account is maintained:
|
||
| MORTGAGEIT,
INC.
Servicer
|
||
|
By:
|
||
| Name: | ||
| Title: | ||
B-1
EXHIBIT
C
FORMS
OF
ESCROW ACCOUNT CERTIFICATIONS
ESCROW
ACCOUNT CERTIFICATION
____________________,
20 _______
MortgageIT,
Inc. hereby certifies that it has established the account described below as
an
Escrow Account pursuant to Section 4.06 of the Servicing Agreement, dated as
of
____________________, 20________,.
|
Title
of Account:
|
Escrow
Account in trust for “Deutsche Bank National Trust Company, as trustee of
MortgageIT Trust 2006-1”- T & I
|
|
Address
of office or branch of
the
Servicer at which Account is maintained:
|
|
|
MORTGAGEIT, INC.
Servicer
|
||
|
By:
|
|
|
| Name: | ||
| Title: | ||
C-1
EXHIBIT
D
LOAN
LEVEL FORMAT FOR TAPE INPUT,
SERVICER
PERIOD REPORTING
Exhibit
1: Standard File Layout - Scheduled/Scheduled
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LOAN_NBR
|
Loan
Number assigned by investor
|
Text
up to 10 digits
|
|
|
SERVICER
LOAN_NBR
|
Servicer
Loan Number
|
Text
up to 10 digits
|
|
|
BORROWER_NAME
|
Mortgagor
name assigned to Note
|
Max
length of 30
|
|
|
SCHED_PMT_AMT
|
P&I
constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NOTE_INT_RATE
|
Gross
Interest Rate
|
4
|
Max
length of 6
|
|
NET_RATE
|
Gross
Interest Rate less the Service Fee Rate
|
4
|
Max
length of 6
|
|
SERV_FEE_RATE
|
Service
Fee Rate
|
4
|
Max
length of 6
|
|
NEW_PAY_AMT
|
ARM
loan's forecasted P&I constant
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEW_LOAN_RATE
|
ARM
loan's forecasted Gross Interest Rate
|
4
|
Max
length of 6
|
|
ARM_INDEX_RATE
|
ARM
loan's index Rate used
|
4
|
Max
length of 6
|
|
ACTL_BEG_BAL
|
Beginning
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
ACTL_END_BAL
|
Ending
Actual Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
NEXT_DUE_DATE
|
Borrower's
next due date
|
MM/DD/YYYY
|
|
|
CURT_AMT_1
|
Curtailment
Amount
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_1
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT_1
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_2
|
Curtailment
Amount 2
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_2
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_
AMT2
|
Curtailment
Interest if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_AMT_3
|
Curtailment
Amount 3
|
2
|
No
commas(,) or dollar signs ($)
|
|
CURT_DATE_3
|
Due
date Curtailment was applied to
|
MM/DD/YYYY
|
|
|
CURT_ADJ_AMT3
|
Curtailment
Interest, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_BEG_BAL
|
Beginning
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_END_BAL
|
Ending
Scheduled Balance
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_PRIN_AMT
|
Scheduled
Principal portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
SCHED_NET_INT
|
Scheduled
Net Interest (less Service Fee) portion of P&I
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIQ_AMT
|
Liquidation
Principal Amt to bring balance to zero
|
2
|
No
commas(,) or dollar signs ($)
|
|
PIF_DATE
|
Liquidation
Date
|
MM/DD/YYYY
|
|
|
ACTION_CODE
|
Either
60 for liquidation or 65 for Repurchase
|
Max
length of 2
|
|
|
PRIN_ADJ_AMT
|
Principal
Adjustments made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
INT_ADJ_AMT
|
Interest
Adjustment made to loan, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
PREPAYMENT
PENALTY AMT
|
Prepayment
penalty amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
SOILDER_SAILOR
ADJ AMT
|
Soldier
and Sailor Adjustment amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
|
NON
ADV LOAN AMT
|
Non
Recoverable Loan Amount, if applicable
|
2
|
No
commas(,) or dollar signs ($)
|
D-1
EXHIBIT E
REPORTING
DATA FOR DEFAULTED LOANS
Data
must
be submitted to ▇▇▇▇▇ Fargo Bank in an Excel
spreadsheet format with fixed field names and data type. The Excel
spreadsheet should be used as a template consistently every month when
submitting data.
Table:
Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
E-1
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
E-2
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM
- Approved
Assumption
|
| · |
BAP
- Borrower
Assistance Program
|
| · |
CO
-
Charge
Off
|
| · |
DIL
-
Deed-in-Lieu
|
| · |
FFA
-
Formal
Forbearance Agreement
|
| · |
MOD
- Loan
Modification
|
| · |
PRE
- Pre-Sale
|
| · |
SS
-
Short
Sale
|
| · |
MISC
- Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
E-3
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
E-4
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
E-5
Items
in
bold are MANDATORY FIELDS. We must receive information in those fields every
month in order for your file to be accepted.
The
Action Code Field should show the applicable numeric code to indicate that
a
special action is being taken. The Action Codes are the following:
12-Relief
Provisions
15-Bankruptcy/Litigation
20-Referred
for Deed-in-Lieu
30-Referred
fore Foreclosure
▇▇-▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇-▇▇▇▇
for Sale
71-Third
Party Sale/Condemnation
72-REO-Pending
Conveyance-Pool Insurance claim filed
▇▇▇▇▇
Fargo Bank will accept alternative Action Codes to those above, provided that
the Codes are consistent with industry standards. If Action Codes other than
those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description
of Action Codes:
Action
Code 12
- To
report a Mortgage Loan for which the Borrower has been granted relief for curing
a delinquency. The Action Date is the date the relief is expected to end. For
military indulgence, it will be three months after the Borrower's discharge
from
military service.
Action
Code 15
- To
report the Borrower's filing for bankruptcy or instituting some other type
of
litigation that will prevent or delay liquidation of the Mortgage Loan. The
Action Date will be either the date that any repayment plan (or forbearance)
instituted by the bankruptcy court will expire or an additional date by which
the litigation should be resolved.
Action
Code 20
- To
report that the Borrower has agreed to a deed-in-lieu or an assignment of the
property. The Action Date is the date the Servicer decided to pursue a
deed-in-lieu or the assignment.
Action
Code 30
- To
report that the decision has been made to foreclose the Mortgage Loan. The
Action Date is the date the Servicer referred the case to the foreclosure
attorney.
Action
Code 60
- To
report that a Mortgage Loan has been paid in full either at, or prior to,
maturity. The Action Date is the date the pay-off funds were remitted to the
Master Servicer.
Action
Code 65
- To
report that the Servicer is repurchasing the Mortgage Loan. The Action Date
is
the date the repurchase proceeds were remitted to the Master
Servicer.
Action
Code 70
- To
report that a Mortgage Loan has been foreclosed or a deed-in-lieu of foreclosure
has been accepted, and the Servicer, on behalf of the owner of the Mortgage
Loan, has acquired the property and may dispose of it. The Action Date is the
date of the foreclosure sale or, for deeds-in-lieu, the date the deed is
recorded on behalf of the owner of the Mortgage Loan.
E-6
Action
Code 71
- To
report that a Mortgage Loan has been foreclosed and a third party acquired
the
property, or a total condemnation of the property has occurred. The Action
Date
is the date of the foreclosure sale or the date the condemnation award was
received.
Action
Code 72
- To
report that a Mortgage Loan has been foreclosed, or a deed-in-lieu has been
accepted, and the property may be conveyed to the mortgage insurer and the
pool
insurance claim has been filed. The Action Date is the date of the foreclosure
sale, or, for deeds-in-lieu, the date of the deed for conventional
mortgages.
The
Loss
Mit Type field should show the approved Loss Mitigation arrangement. The
following are acceptable:
| ASUM- | Approved Assumption | ||
| BAP- | Borrower Assistance Program | ||
| CO- | Charge Off | ||
| DIL- | Deed-in-Lieu | ||
| FFA- | Formal Forbearance Agreement | ||
| MOD- | Loan Modification | ||
| PRE- | Pre-Sale | ||
| SS- | Short Sale | ||
| MISC- | Anything else approved by the PMI or Pool Insurer |
▇▇▇▇▇
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant Code field should show the current status of the property. The
acceptable codes are:
|
Mortgagor
Tenant
Unknown
Vacant
|
E-7
EXHIBIT
F
CALCULATION
OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
The
numbers on the form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
|
4-12.
|
Complete
as applicable. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, bills, canceled checks, etc., to
document
the expense. Entries not properly documented will not be reimbursed
to the
Servicer.
|
|
13.
|
The
total of lines 1 through 12.
|
Credits:
|
14-21.
|
Complete
as applicable. All line entries must be supported by copies of the
appropriate claims forms, EOBs, HUD-1 and/or other proceeds verification,
statements, payment checks, etc. to document the credit. If the Mortgage
Loan is subject to a Bankruptcy Deficiency, the difference between
the
Unpaid Principal Balance of the Note prior to the Bankruptcy Deficiency
and the Unpaid Principal Balance as reduced by the Bankruptcy Deficiency
should be input on line 20.
|
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
|
23.
|
The
total derived from subtracting line 22 from 13. If the amount represents
a
realized gain, show the amount in parenthesis (
).
|
F-1
EXHIBIT
3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
▇▇▇▇▇
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________
Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Subservicer
Loan No.
|
Subservicer
Name
|
Subservicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No.
________________________________________________________________________________
Borrower's
Name:
________________________________________________________________________________________________
Property
Address:
_______________________________________________________________________________________________
Liquidation
and Acquisition Expenses:
|
(1) Actual
Unpaid Principal Balance of Mortgage Loan
|
$
|
(1)
|
||
|
(2) Interest
accrued at Net Rate
|
(2)
|
|||
|
(3) Accrued
Servicing Fees
|
(3)
|
|||
|
(4) Attorney's
Fees
|
(4)
|
|||
|
(5) Taxes
|
(5)
|
|||
|
(6) Property
Maintenance
|
(6)
|
|||
|
(7) MI/Hazard
Insurance Premiums
|
(7)
|
|||
|
(8) Utility
Expenses
|
(8)
|
|||
|
(9) Appraisal/BPO
|
(9)
|
|||
|
(10) Property
Inspections
|
(10)
|
|||
|
(11) FC
Costs/Other Legal Expenses
|
(11)
|
|||
|
(12) Other
(itemize)
|
$
|
(12)
|
||
|
Cash
for Keys __________________________
|
||||
|
HOA/Condo
Fees _______________________
|
||||
|
______________________________________
|
||||
|
______________________________________
|
||||
|
Total
Expenses
|
$
|
(13)
|
||
Credits:
|
(14) Escrow
Balance
|
(14)
|
|||
|
(15) HIP
Refund
|
(15)
|
|||
|
(16) Rental
Receipts
|
(16)
|
|||
|
(17) Hazard
Loss Proceeds
|
(17)
|
|||
|
(18) Primary
Mortgage Insurance Proceeds
|
(18)
|
|||
|
(19) Pool
Insurance Proceeds
|
(19)
|
|||
|
(20) Proceeds
from Sale of Acquired Property
|
(20)
|
|||
|
(21) Other
(itemize)
|
(21)
|
|||
|
Total
Credits
|
$
|
(22)
|
||
|
Total
Realized Loss (or Amount of Gain)
|
$
|
(23)
|
||
3A-1
EXHIBIT
G
FORM
OF
REQUEST FOR RELEASE
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
To:
[Address]
|
Re:
|
Custodial
Agreement, dated as of [_________], among Deutsche Bank National
Trust
Company, as Trustee, Greenwich Capital Acceptance, Inc., as Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Deutsche Bank National Trust Company, as Custodian and MortgageIT
Trust
2006-1, as Issuer.
|
In
connection with the administration of the Mortgage Loans held by you as the
Custodian, we request the release, and acknowledge receipt, of the (Mortgage
File/[specify documents]) for the Mortgage Loan described below, for the reason
indicated.
Mortgagor=s
Name
Address & Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents (check one)
C 1. Mortgage
Loan Paid in Full. (The Servicer of such Mortgage Loan hereby certifies that
all
amounts received in connection therewith have been credited to the account
of
the Trust.)
C 2. Mortgage
Loan Liquidated By _______________________ (The Servicer of such Mortgage Loan
hereby certifies that substantially all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received and credited to
the
account of the Trust.)
C 3. Mortgage
Loan in Foreclosure
C 4. Other
(explain)
If
box 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous request and receipt on file
with you, as well as any additional documents in your possession relating to
the
specified Mortgage Loan.
If
box 3
or 4 above is checked, upon our return of all of the above documents to you
as
the Custodian, please acknowledge your receipt by signing in the space indicated
below, and returning this form, if requested.
G-1
EXHIBIT
H
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED
IN
REPORT
ON ASSESSMENT OF COMPLIANCE
To:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Greenwich
Capital Acceptance, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is made to that certain servicing agreement, dated as of February 1, 2006 (the
“Agreement”), by and between ▇▇▇▇▇ Fargo Bank, National Association, Deutsche
Bank National Trust Company, as trustee, and MortgageIT, Inc., relating to
the
issuance of the MortgageIT Trust Mortgage Pass-Through Certificates, Series
2006-1. This certification is delivered pursuant to Section [__] of the
Agreement. Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Agreement.
[_______],
the undersigned, a duly authorized [_______] of [the Servicer] [Name of
Subservicer/Subcontractor], does hereby certify that the assessment of
compliance to be delivered by [the Servicer] [Name of Subservicer/Subcontractor]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”, as identified by a ▇▇▇▇ in the column titled “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
ü
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
ü
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
ü
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
ü
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
ü
|
H-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
ü
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
ü
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
ü
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
ü
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
ü
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
ü
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
ü
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
ü
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
ü
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
ü
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
ü
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
ü
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
ü
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
H-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
ü
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
ü
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
ü
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
ü
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
ü
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
ü
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
ü
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
ü
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
ü
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
H-3
[NAME
OF
THE SERVICER] [NAME OF SUBSERVICER/ SUBCONTRACTOR]
Date: ________________________________
By: ________________________________
Name:
Title:
H-4
EXHIBIT
I
TRANSACTION
PARTIES
| Trustee |
Deutsche
Bank National Trust Company
|
| Securities Administrator | ▇▇▇▇▇ Fargo Bank, N.A. |
| Master Servicer |
▇▇▇▇▇
Fargo Bank, N.A.
|
| Yield Maintenance Provider | The Royal Bank of Scotland, plc. |
| Servicer |
MortgageIT,
Inc.
|
| Subservicer | GMAC Mortgage Corporation |
| Originator(s) |
MortgageIT,
Inc.
|
| Custodian(s) |
Deutsche
Bank National Trust Company
|
| Seller |
MortgageIT,
Inc.
|
I-1
EXHIBIT
J
FORM
OF
ANNUAL CERTIFICATION
| Re: |
The
Servicing Agreement dated as of February 1, 2006 (the “Agreement”), by and
between ▇▇▇▇▇ Fargo Bank, National Association as master servicer
(the
“Master Servicer”), Deutsche Bank National Trust Company, as trustee (the
“Trustee”) and MortgageIT, Inc., as servicer (the
Servicer”)
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Master Servicer, Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”) and the Trustee, and their officers, with the knowledge and intent
that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to any of the Company, the
Depositor and the Master Servicer pursuant to the Agreement (collectively,
the
“Servicing Information”);
(2) Based
on
my knowledge, the 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 Servicing Information;
(3) Based
on
my knowledge, all of the Servicing Information required to be provided by the
Servicer under the Agreement has been provided to the Trustee, the Depositor
and
the Master Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Depositor and the Master Servicer. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor and the Master Servicer. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
A
copy of
all assessments, attestations, reports and certifications required to be
delivered by the Servicer under this Agreement shall be delivered to the Master
Servicer by the date(s) specified herein, and where such documents are required
to be addressed to any party, such addressees shall include the Master Servicer
and the Master Servicer shall be entitled to rely on such
documents.
Date: _________________________
By:
_____________________________
Name:
Title:
J-2