EXHIBIT 10.1
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XXXXX FARGO BANK, N.A.
(Master Servicer)
and
XXXXX FARGO BANK, N.A.
(Servicer)
SERVICING AGREEMENT
Dated as of February 28, 2008
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TABLE OF CONTENTS
ARTICLE 1
Definitions
Section 1.1 Definitions..................................................................................
ACH..........................................................................................
Additional Form 10-D Disclosure..............................................................
Additional Form 10-K Disclosure..............................................................
Adjusted Tangible Net Worth..................................................................
Administration Disclosure....................................................................
Advance......................................................................................
Affiliate....................................................................................
Amounts Held for Future Distribution.........................................................
Applicable Unscheduled Principal Receipt Period..............................................
Appraisal Report.............................................................................
ARM Loan.....................................................................................
Assigned Letter of Credit....................................................................
Assignment...................................................................................
Assumption...................................................................................
Balloon Amount...............................................................................
Balloon Loan.................................................................................
Bankruptcy Code..............................................................................
BIF..........................................................................................
Borrower.....................................................................................
Business Day.................................................................................
Buydown Agreement............................................................................
Buydown Funds................................................................................
Capitalized Advance Amount...................................................................
Certificate Account..........................................................................
Certificates.................................................................................
Certificateholders...........................................................................
Code.........................................................................................
Commission...................................................................................
Condominium Project..........................................................................
Condominium Unit.............................................................................
Converted Mortgage Loan......................................................................
Co-op Shares.................................................................................
Credit Counseling Fee Advances...............................................................
Current Value................................................................................
Curtailment..................................................................................
Custodial Agreement..........................................................................
Custodial Buydown Account....................................................................
Custodial PITI Account.......................................................................
Custodial Principal and Interest (P&I) Account...............................................
Custodial Subsidy Account....................................................................
Custodial Taxes and Insurance (T&I) Account..................................................
Custodian....................................................................................
Cut-Off Date.................................................................................
Debt Service Reduction.......................................................................
Deficient Valuation..........................................................................
Delinquency/Delinquent.......................................................................
Depositor....................................................................................
Determination Date...........................................................................
Directly Operate.............................................................................
Distribution Date............................................................................
Document Transfer Date.......................................................................
Document Transfer Event......................................................................
Due Date.....................................................................................
Due-On-Sale Clause...........................................................................
Eligible Account.............................................................................
Eligible Custodial P&I Account...............................................................
Eligible Investments.........................................................................
Errors and Omissions Policy..................................................................
Escrow Funds.................................................................................
Escrow Item..................................................................................
Exchange Act.................................................................................
FDIC.........................................................................................
FHA..........................................................................................
FHLMC........................................................................................
Fidelity Bond................................................................................
Final Scheduled Maturity Date................................................................
Final Title Condition Report.................................................................
Flood Insurance..............................................................................
FNMA.........................................................................................
Form 8-K.....................................................................................
Form 8-K Disclosure Information..............................................................
Form 10-D....................................................................................
Form 10-K....................................................................................
Full Unscheduled Principal Receipt...........................................................
GNMA.........................................................................................
GPM (or GPARM) Loan..........................................................................
Gross Margin.................................................................................
Group........................................................................................
Hazard Insurance.............................................................................
HUD..........................................................................................
Index........................................................................................
Insurance Policy.............................................................................
Insurance Proceeds...........................................................................
Interest Adjustment Date.....................................................................
Letter of Credit.............................................................................
Liquidation..................................................................................
Liquidation Proceeds.........................................................................
Liquidation Profits..........................................................................
Loan Group...................................................................................
Loan Originator..............................................................................
Loan-to-Value (LTV)..........................................................................
Lost Note Affidavit..........................................................................
Master Servicer..............................................................................
Master Servicer Loan Number..................................................................
Maximum Lifetime Mortgage Interest Rate......................................................
Maximum Negative Amortization Amount.........................................................
MERS.........................................................................................
Mid-Month Receipt Period.....................................................................
Minimum Lifetime Mortgage Interest Rate......................................................
Month End Interest...........................................................................
Month End Interest Shortfall.................................................................
Monthly Accounting Reports...................................................................
Monthly Payment..............................................................................
Monthly Remittance...........................................................................
Mortgage Interest Rate.......................................................................
Mortgage Loan................................................................................
Mortgage Loan Documents......................................................................
Mortgage Loan Purchase Agreement.............................................................
Mortgage Note................................................................................
Mortgage Note Assumption Rider...............................................................
Mortgage Pass-Through Certificates...........................................................
Mortgaged Property...........................................................................
Mortgagee....................................................................................
Net Mortgage Interest Rate...................................................................
Non-Assigned Letter of Credit................................................................
Non-Recoverable Advance......................................................................
Notice of Periodic Adjustment................................................................
Officer......................................................................................
Officer's Certificate........................................................................
Opinion of Counsel...........................................................................
Owner Mortgage Loan File.....................................................................
P&I Advance..................................................................................
Partial Liquidation Proceeds.................................................................
Partial Liquidation Receipt Period...........................................................
Partial Unscheduled Principal Receipt........................................................
Payment Adjustment Date......................................................................
Periodic Payment Cap.........................................................................
Periodic Rate Cap............................................................................
Person.......................................................................................
PITI Funds...................................................................................
PITI Loan....................................................................................
Pledge Holder................................................................................
Pledged Asset Mortgage Loan..................................................................
PMI Advance..................................................................................
Pool Insurance...............................................................................
Pool Insurer.................................................................................
Pooling and Servicing Agreement..............................................................
Preliminary Title Report.....................................................................
Prepayment In Full...........................................................................
Primary Mortgage Insurance...................................................................
Primary Mortgage Insurer.....................................................................
Prior Month Receipt Period...................................................................
Property Inspection Report...................................................................
Prospectus...................................................................................
Prudent Servicing Practices..................................................................
PUD (Planned Unit Development)...............................................................
PUD Unit.....................................................................................
Purchase Price...............................................................................
Rating Agency................................................................................
Real Estate Owned (REO)......................................................................
Realized Loss................................................................................
Recovery.....................................................................................
Reference Bank...............................................................................
Regulation AB................................................................................
Relevant Servicing Criteria..................................................................
REMIC........................................................................................
REMIC Provisions.............................................................................
Remittance Date..............................................................................
Rents from Real Property.....................................................................
REO Disposition..............................................................................
REO Disposition Period.......................................................................
Reportable Event.............................................................................
Representing Party...........................................................................
Retained Mortgage Loan File..................................................................
SAIF.........................................................................................
Xxxxxxxx-Xxxxx Certification.................................................................
Scheduled Principal Balance..................................................................
Securities Act...............................................................................
Security Instrument..........................................................................
Servicer.....................................................................................
Servicer Loan Mortgage Number................................................................
Servicer Modification........................................................................
Servicer Mortgage Loan File..................................................................
Servicer Mortgage Loan Schedule..............................................................
Servicing Advances...........................................................................
Servicing Criteria...........................................................................
Servicing Fee................................................................................
Servicing Fee Percentage.....................................................................
Single Family Property.......................................................................
Subcontractor................................................................................
Subservicer..................................................................................
Subsidy Funds................................................................................
Subsidy Loan.................................................................................
Tangible Net Worth...........................................................................
T&I Advance..................................................................................
Threshold Amount.............................................................................
Title Insurance..............................................................................
Transfer of Ownership........................................................................
Trust........................................................................................
Trust Administrator..........................................................................
Trustee......................................................................................
Type 1 Mortgage Loans........................................................................
Type 2 Mortgage Loans........................................................................
Unpaid Principal Balance.....................................................................
Unscheduled Principal Receipt................................................................
Value........................................................................................
Xxxxx Fargo Bank.............................................................................
ARTICLE 2
Construction
Section 2.1 Legal Construction...........................................................................
2.1.1. Compliance with Applicable Law...........................................................
2.1.2. Potential Conflict.......................................................................
2.1.3. Consistent Legal Compliance..............................................................
2.1.4. General Interpretive Rules...............................................................
2.1.5. Construction of Provisions...............................................................
Section 2.2 Servicer Practices...........................................................................
2.2.1. Prudent Servicing Practices..............................................................
2.2.2. Non-Discrimination Practices.............................................................
Section 2.3 General Provisions...........................................................................
2.3.1. Servicer's Agreement.....................................................................
2.3.2. Term of Agreement........................................................................
2.3.3. Amended Mortgage Loan Schedule...........................................................
2.3.4. Assignment and Replacement...............................................................
2.3.5. Notices..................................................................................
2.3.6. Change of Accountants....................................................................
ARTICLE 3
REMIC Compliance
Section 3.1 General......................................................................................
3.1.1. Applicability............................................................................
3.1.2. Modifications of Mortgage................................................................
3.1.3. Indemnification with Respect to Certain Taxes and Loss of REMIC Status...................
Section 3.2 REO Qualification............................................................................
3.2.1. Foreclosure Property.....................................................................
3.2.2. Foreclosure Property Qualification Restrictions..........................................
3.2.3. REO Disposition..........................................................................
Section 3.3 Prohibited Transactions and Activities.......................................................
3.3.1. Mortgage Loan Disposition Restriction....................................................
3.3.2. Personal Property........................................................................
Section 3.4 Eligible Investments.........................................................................
3.4.1. Custodial Account........................................................................
3.4.2. Escrow Account...........................................................................
ARTICLE 4
Servicer Considerations
Section 4.1 Servicer Eligibility Standards...............................................................
4.1.1. Regulatory Approvals and Licensing.......................................................
4.1.2. Net Worth and Portfolio Requirements.....................................................
4.1.3. Auditor's Opinion; Other Annual Reports and Exchange Act Reporting.......................
4.1.4. Use of Subservicers and Subcontractors...................................................
4.1.5. Servicing Experience.....................................................................
4.1.6. Material Changes.........................................................................
Section 4.2 Errors and Omissions Insurance...............................................................
4.2.1. E & O Requirement........................................................................
4.2.2. E & O Scope..............................................................................
4.2.3. E & O Policy Maintenance.................................................................
4.2.4. E & O Deductible.........................................................................
4.2.5. E & O Qualifications.....................................................................
Section 4.3 Fidelity Bond Coverage.......................................................................
4.3.1. Fidelity Bond Requirement................................................................
4.3.2. Fidelity Bond Coverage...................................................................
4.3.3. Fidelity Bond Scope......................................................................
4.3.4. Fidelity Bond Maintenance................................................................
4.3.5. Fidelity Bond Deductible.................................................................
4.3.6. Fidelity Bond Rating Requirement.........................................................
Section 4.4 Servicer's Liability.........................................................................
4.4.1. Liability Exposure.......................................................................
4.4.2. Scope of Liability.......................................................................
Section 4.5 Indemnification..............................................................................
4.5.1. Scope of Indemnity by Servicer...........................................................
4.5.2. Survival of Indemnity....................................................................
Section 4.6 Servicer's Compensation; Indemnification.....................................................
4.6.1. Servicing Fee Amount.....................................................................
4.6.2. Servicing Fee Source.....................................................................
4.6.3. Indemnification of Servicer..............................................................
ARTICLE 5
Representations and Warranties
Section 5.1 General......................................................................................
5.1.1. Reliance.................................................................................
5.1.2. Survival of Representations and Warranties...............................................
5.1.3. Breach of Representation or Warranty.....................................................
5.1.4. Assignment of Representations and Warranties.............................................
Section 5.2 Servicer Representations and Warranties......................................................
5.2.1. Qualification of Servicer................................................................
5.2.2. Requisite................................................................................
5.2.3. No Conflicts.............................................................................
5.2.4. Enforceable Agreement....................................................................
5.2.5. No Consents..............................................................................
5.2.6. Agency Approval..........................................................................
5.2.7. Financial Condition......................................................................
5.2.8. Servicing Practices......................................................................
5.2.9. No Impairment............................................................................
5.2.10. No Inquiries.............................................................................
5.2.11. No Performance Triggering Event..........................................................
5.2.12. No Termination...........................................................................
5.2.13. No Material Noncompliance................................................................
5.2.14. Servicing Policies and Procedures........................................................
5.2.15. No Affiliations..........................................................................
5.2.16. Legal or Governmental Proceedings........................................................
5.2.17. Custodial and Escrow Accounts Current....................................................
5.2.18. Insurance Maintenance....................................................................
ARTICLE 6
Custodial Accounting
Section 6.1 In General...................................................................................
6.1.1. Custodial Account Establishment..........................................................
6.1.2. Custodial Account Separateness...........................................................
6.1.3. Custodial Account Maintenance............................................................
6.1.4. Escrow Investment........................................................................
6.1.5. Clearing Account.........................................................................
6.1.6. Custodial Buydown Account................................................................
6.1.7. Certificate Account......................................................................
6.1.8. Custodial Subsidy Account................................................................
6.1.9. Custodial PITI Account...................................................................
Section 6.2 Custodial P&I Account........................................................................
6.2.1. Mandatory Deposits.......................................................................
6.2.2. Optional Deposits........................................................................
6.2.3. Permissible Withdrawals..................................................................
6.2.4. Account Beneficiary......................................................................
6.2.5. Use of Accounts..........................................................................
Section 6.3 Custodial T&I Account........................................................................
6.3.1. Mandatory Deposits.......................................................................
6.3.2. Permissible Withdrawals..................................................................
6.3.3. Account Requirements.....................................................................
6.3.4. Account Balance..........................................................................
Section 6.4 Eligible Account Investments.................................................................
6.4.1. Eligible Investments Permitted...........................................................
6.4.2. Eligible Investment Restrictions.........................................................
6.4.3. Eligible Investment Income...............................................................
6.4.4. Eligible Investment Losses...............................................................
6.4.5. Eligible Investments Reports.............................................................
6.4.6. Inter-Company Uses of Funds..............................................................
ARTICLE 7
Mortgage Loan Accounting
Section 7.1 In General...................................................................................
7.1.1. Mortgage Loan Accounting Practices.......................................................
7.1.2. Record Keeping...........................................................................
7.1.3. Record Review............................................................................
Section 7.2 Mortgage Loan Records........................................................................
7.2.1. Account Records..........................................................................
7.2.2. Account Record Information...............................................................
7.2.3. Accounting Practice......................................................................
7.2.4. Access to Certain Documentation and Information Regarding the Mortgage Loans.............
Section 7.3 Accounting Procedures........................................................................
7.3.1. Principal and Interest Computation.......................................................
7.3.2. Amortization Requirement.................................................................
7.3.3. Negative Amortization....................................................................
7.3.4. Interest Calculations....................................................................
7.3.5. Buydown Loans............................................................................
Section 7.4 Application Procedure........................................................................
7.4.1. Application Priority.....................................................................
7.4.2. [Reserved]...............................................................................
7.4.3. Advance Payments.........................................................................
Section 7.5 Curtailments.................................................................................
7.5.1. Curtailment Amount.......................................................................
7.5.2. Curtailment Application..................................................................
7.5.3. Effect of Curtailment....................................................................
7.5.4. Curtailment Transmission.................................................................
Section 7.6 Liquidations.................................................................................
7.6.1. Month End Interest.......................................................................
7.6.2. Liquidation Reports......................................................................
7.6.3. Deposit of Funds.........................................................................
7.6.4. Document Request.........................................................................
Section 7.7 Realized Losses..............................................................................
7.7.1. Liquidation Realized Loss Determination..................................................
7.7.2. Bankruptcy Realized Loss Determination...................................................
7.7.3. Servicer Modification Realized Loss Determination........................................
7.7.4. Reporting Requirement....................................................................
7.7.5. Servicer's Liability.....................................................................
ARTICLE 8
ARM Loans
Section 8.1 ARM Loan Servicing...........................................................................
8.1.1. In General...............................................................................
8.1.2. Servicer's Liability.....................................................................
8.1.3. Adjustment Reports.......................................................................
8.1.4. Substitute Index.........................................................................
Section 8.2 Notice of Periodic Adjustment................................................................
8.2.1. Notice Requirement.......................................................................
8.2.2. Notice Contents..........................................................................
Section 8.3 ARM Loan Conversion..........................................................................
8.3.1. Servicer's Determination.................................................................
8.3.2. Purchase by Servicer.....................................................................
ARTICLE 9
Mortgage Loan Files
Section 9.1 Owner Mortgage Loan Files and Retained Mortgage Loan Files...................................
9.1.1. Owner Mortgage Loan File and Retained Mortgage Loan File Requirements....................
9.1.2. Custodian................................................................................
9.1.3. Release of Documents from Owner Mortgage Loan File or Retained Mortgage Loan File........
9.1.4. Execution by Trustee.....................................................................
9.1.5. Representing Party Officers' Certificate.................................................
9.1.6. Custodial Fees...........................................................................
Section 9.2 Servicer Mortgage Loan Files.................................................................
9.2.1. Servicer Mortgage Loan File Requirements.................................................
9.2.2. Servicer Mortgage Loan File Access.......................................................
9.2.3. Alternate Media..........................................................................
Section 9.3 Requisite Form...............................................................................
9.3.1. Form of Endorsements.....................................................................
9.3.2. Form of Assignment.......................................................................
ARTICLE 10
Escrows
Section 10.1 Escrow Criteria..............................................................................
10.1.1. Escrow Requirement.......................................................................
10.1.2. Mortgage Loans without Escrow............................................................
Section 10.2 Payment of Escrow Items......................................................................
10.2.1. Escrow Payment Obligation................................................................
10.2.2. Escrow Item Payments.....................................................................
10.2.3. Escrow Fund Insufficiency................................................................
10.2.4. Nonpayment Notice........................................................................
Section 10.3 Escrow Fund Determination....................................................................
10.3.1. Escrow Funds Analysis....................................................................
10.3.2. Escrow Fund Surplus......................................................................
10.3.3. Escrow Fund Deficiency...................................................................
Section 10.4 Records......................................................................................
10.4.1. Escrow Funds Records.....................................................................
10.4.2. Escrow Obligations Records...............................................................
Section 10.5 Escrow Waiver................................................................................
10.5.1. Waiver Conditions........................................................................
10.5.2. Waiver Rescission........................................................................
ARTICLE 11
Collection and Servicing Practices
Section 11.1 General Servicing Requirements...............................................................
11.1.1. Servicing Practices......................................................................
11.1.2. Tax Returns and Other Reports............................................................
11.1.3. Servicer Internal Controls...............................................................
11.1.4. Pool Insurance Compliance................................................................
11.1.5. Primary Mortgage Insurance Compliance....................................................
11.1.6. Letter of Credit Compliance..............................................................
Section 11.2 Delegation of Duties.........................................................................
11.2.1. Permissible Delegations..................................................................
11.2.2. Delegee's Qualifications.................................................................
11.2.3. Responsibility for Costs.................................................................
11.2.4. Servicer's Liability.....................................................................
Section 11.3 Due-on-Sale Clause Enforcement...............................................................
11.3.1. Enforcement Requirement..................................................................
11.3.2. [Reserved]...............................................................................
11.3.3. Approval Requirement.....................................................................
11.3.4. Exempt Transactions......................................................................
Section 11.4 Assumptions..................................................................................
11.4.1. Assumption Requirements..................................................................
11.4.2. Approval and Release.....................................................................
11.4.3. Assumption Agreement Provided to Custodian...............................................
11.4.4. Assumption Fees..........................................................................
11.4.5. Disclosure Requirement...................................................................
Section 11.5 Partial Releases and Easements...............................................................
11.5.1. Prerequisites............................................................................
11.5.2. Release or Modification of Lien..........................................................
11.5.3. Master Servicer's Approval...............................................................
Section 11.6 Recordation of Assignments...................................................................
11.6.1. Recordation Requirement..................................................................
11.6.2. Extension of Recording Period............................................................
11.6.3. Delivery Requirement.....................................................................
11.6.4. Waiver of Recordation....................................................................
Section 11.7 General Servicing Considerations.............................................................
11.7.1. Abandonment..............................................................................
11.7.2. Buydown Funds............................................................................
11.7.3. Maintenance of Records...................................................................
11.7.4. Eminent Domain...........................................................................
11.7.5. Late Charges.............................................................................
Section 11.8 Borrower Bankruptcy..........................................................................
11.8.1. Servicer's Duty..........................................................................
11.8.2. Responsibility for Costs.................................................................
11.8.3. Challenge Bankruptcy Reductions..........................................................
11.8.4. Bankruptcy Adjustments...................................................................
11.8.5. Bankruptcy Plan Surveillance.............................................................
ARTICLE 12
Delinquency Management
Section 12.1 In General...................................................................................
12.1.1. Servicing Practices......................................................................
12.1.2. Servicer's Capabilities..................................................................
12.1.3. Servicing Objectives.....................................................................
12.1.4. Servicer's Expenses......................................................................
Section 12.2 Delinquency Servicing Procedures.............................................................
12.2.1. Late Notice..............................................................................
12.2.2. Telephonic Inquiry.......................................................................
12.2.3. Notice of Default........................................................................
12.2.4. Borrower Interview.......................................................................
12.2.5. Continuing Contacts......................................................................
12.2.6. Property Inspection......................................................................
Section 12.3 Relief of Borrowers..........................................................................
12.3.1. Servicer's Role..........................................................................
12.3.2. [Reserved]...............................................................................
12.3.3. Relief Requirement.......................................................................
12.3.4. Primary Mortgage Insurance Considerations................................................
12.3.5. Responsibility for Costs.................................................................
12.3.6. Forbearance Plan; Modification...........................................................
12.3.7. Accommodation Limitations................................................................
12.3.8. Pool Insurance Considerations............................................................
Section 12.4 Special Delinquency Servicing Considerations.................................................
12.4.1. Advance Responsibility During Delinquency................................................
12.4.2. Primary Mortgage Insurance Compliance....................................................
12.4.3. Pool Insurance Compliance................................................................
ARTICLE 13
Foreclosure Administration
Section 13.1 Foreclosure Prerequisites....................................................................
13.1.1. Foreclosure/Alternative to Foreclosure Initiation........................................
13.1.2. Foreclosure Expenses.....................................................................
13.1.3. Hazardous Wastes.........................................................................
Section 13.2 Deed-in-Lieu of Foreclosure..................................................................
13.2.1. Conditions...............................................................................
13.2.2. Subsequent Actions.......................................................................
Section 13.3 Actions Prior to Foreclosure.................................................................
13.3.1. Notice Requirements......................................................................
13.3.2. Initiation of Proceedings................................................................
13.3.3. Short Sale or Short Payoff of Defaulted Mortgage Loans in Lieu of Foreclosure............
Section 13.4 Foreclosure Procedures.......................................................................
13.4.1. Foreclosure Expenses.....................................................................
13.4.2. Bidding Instructions.....................................................................
13.4.3. Buydown Funds Use........................................................................
13.4.4. Servicer's Responsibilities..............................................................
13.4.5. Conveyance Documents.....................................................................
Section 13.5 Mortgage Loan Reinstatement..................................................................
13.5.1. Borrower's Full Payment..................................................................
13.5.2. Borrower's Partial Payment...............................................................
13.5.3. Obligations upon Reinstatement...........................................................
13.5.4. Certain Assumptions Permitted............................................................
ARTICLE 14
REO Administration
Section 14.1 General Provisions...........................................................................
14.1.1. REO Action Plan..........................................................................
Section 14.2 REO Servicing................................................................................
14.2.1. REO Servicing Requirements...............................................................
14.2.2. Servicer's Responsibilities..............................................................
14.2.3. [Reserved]...............................................................................
Section 14.3 REO Records and Reports......................................................................
14.3.1. Records Retention........................................................................
14.3.2. Evidence of Title........................................................................
14.3.3. REO Expenses.............................................................................
14.3.4. REO Documents............................................................................
Section 14.4 REO Marketing................................................................................
14.4.1. REO Marketing Efforts....................................................................
14.4.2. REO Sales................................................................................
14.4.3. Primary Mortgage Insurance Considerations................................................
14.4.4. Master Servicer Instructions.............................................................
14.4.5. Pool Insurance Considerations............................................................
Section 14.5 REO Rehabilitation...........................................................................
14.5.1. REO Rehabilitation Requirement...........................................................
14.5.2. [Reserved]...............................................................................
14.5.3. Written Contractor Bids..................................................................
14.5.4. Primary Mortgage Insurance Considerations................................................
Section 14.6 REO Administration Failure...................................................................
14.6.1. Servicer Removal.........................................................................
14.6.2. Servicer's Continuing Obligations........................................................
14.6.3. Servicer's Duty to Compensate............................................................
ARTICLE 15
Insurance and Letter of Credit
Section 15.1 General Provisions...........................................................................
15.1.1. Insurance Requirements...................................................................
15.1.2. Uninsured Losses.........................................................................
15.1.3. Servicer's Obligation to Maintain Insurance..............................................
15.1.4. Insurance Notices........................................................................
15.1.5. Default by Insurer.......................................................................
15.1.6. Insurance Carrier Rating.................................................................
15.1.7. Insurance Carrier Licenses...............................................................
15.1.8. Risk Exposure............................................................................
15.1.9. Evidence of Insurance....................................................................
Section 15.2 Primary Mortgage Insurance...................................................................
15.2.1. Primary Mortgage Insurance Requirement...................................................
15.2.2. Primary Mortgage Insurance Coverage......................................................
15.2.3. Primary Mortgage Insurer Downgrading.....................................................
15.2.4. Primary Mortgage Insurance Cancellation..................................................
15.2.5. Primary Mortgage Insurance Claims........................................................
Section 15.3 Hazard Insurance.............................................................................
15.3.1. Hazard Insurance Requirement.............................................................
15.3.2. Hazard Insurance Coverage................................................................
15.3.3. Hazard Insurance Deductible..............................................................
15.3.4. Hazard Insurance Vacancy Coverage........................................................
15.3.5. Hazard Insurance Mortgagee Provisions....................................................
Section 15.4 Flood Insurance..............................................................................
15.4.1. Flood Insurance Requirement..............................................................
15.4.2. Flood Insurance Coverage.................................................................
15.4.3. Flood Insurance Deductible...............................................................
Section 15.5 Title Insurance..............................................................................
15.5.1. Servicer's Obligations...................................................................
15.5.2. Policy Custody...........................................................................
15.5.3. Title Insurance Claims...................................................................
Section 15.6 Insurance Loss Settlements...................................................................
15.6.1. Settlement Approval......................................................................
15.6.2. Settlement Disbursements.................................................................
15.6.3. Settlement Funds.........................................................................
15.6.4. Settlement Notice........................................................................
15.6.5. Continuing Coverage......................................................................
15.6.6. Property Inspections.....................................................................
Section 15.7 Letters of Credit............................................................................
15.7.1. Letter of Credit Draws...................................................................
15.7.2. Draws in the Event of Servicer Termination...............................................
ARTICLE 16
Condominium and PUD Insurance
Section 16.1 General Provisions...........................................................................
16.1.1. Applicability............................................................................
16.1.2. Premiums.................................................................................
16.1.3. Deductible Reserves......................................................................
16.1.4. Name of Insured..........................................................................
16.1.5. Mortgagee Clause.........................................................................
16.1.6. Reconstruction Coverage..................................................................
Section 16.2 Common Area Multiple Peril Insurance.........................................................
16.2.1. Common Area Multiple Peril Insurance Requirement.........................................
16.2.2. Common Area Multiple Peril Insurance Coverage............................................
16.2.3. Common Area Multiple Peril Insurance Deductible..........................................
16.2.4. Boiler and Machinery Coverage............................................................
Section 16.3 Blanket Hazard Insurance.....................................................................
16.3.1. Blanket Hazard Insurance Requirement.....................................................
16.3.2. Blanket Hazard Insurance Coverage........................................................
16.3.3. Blanket Hazard Insurance Deductible......................................................
Section 16.4 Common Area Comprehensive General Liability (CGL) Insurance..................................
16.4.1. Common Area CGL Insurance Requirement....................................................
16.4.2. Common Area CGL Insurance Coverage.......................................................
Section 16.5 Owners' Association Fidelity Insurance.......................................................
16.5.1. Owners' Association Fidelity Insurance Requirement.......................................
16.5.2. Owners' Association Fidelity Insurance Coverage..........................................
Section 16.6 Blanket Flood Insurance......................................................................
16.6.1. Blanket Flood Insurance Requirement......................................................
16.6.2. Blanket Flood Insurance Coverage.........................................................
16.6.3. Blanket Flood Insurance Deductible.......................................................
ARTICLE 17
Advances
Section 17.1 Principal and Interest Advances..............................................................
17.1.1. P&I Advance Requirement..................................................................
17.1.2. P&I Advance Limitation...................................................................
17.1.3. P&I Advance Recovery.....................................................................
17.1.4. Advance During Bankruptcy and Foreclosure................................................
Section 17.2 Foreclosure Advances.........................................................................
17.2.1. Foreclosure Advance Requirement..........................................................
17.2.2. Foreclosure Advance Limitation...........................................................
17.2.3. Foreclosure Advance Recovery.............................................................
17.2.4. Foreclosure Advance Records..............................................................
Section 17.3 Tax & Insurance Advances.....................................................................
17.3.1. T&I Advance Requirement..................................................................
17.3.2. T&I Advance Recovery.....................................................................
17.3.3. T&I Advance Limitation...................................................................
17.3.4. Advance During Bankruptcy and Foreclosure................................................
Section 17.4 Non-Recoverable Advances.....................................................................
17.4.1. Ordinary Recovery........................................................................
17.4.2. Final Recovery...........................................................................
Section 17.5 Failure to Advance...........................................................................
17.5.1. Grounds for Termination..................................................................
17.5.2. Servicer Reimbursement...................................................................
17.5.3. Servicer Notification....................................................................
Section 17.6 Rehabilitation Advance.......................................................................
17.6.1. Rehabilitation Advance Requirement.......................................................
17.6.2. Rehabilitation Advance Limitation........................................................
17.6.3. Rehabilitation Advance Recovery..........................................................
Section 17.7 PMI Advances.................................................................................
17.7.1. PMI Advance Option.......................................................................
17.7.2. PMI Advance Recovery.....................................................................
Section 17.8 Credit Counseling Fee Advances...............................................................
17.8.1. Credit Counseling Fee Advance Option.....................................................
17.8.2. Credit Counseling Fee Advance Recovery...................................................
Section 17.9 Servicing Advances...........................................................................
17.9.1. Servicing Advance Recovery...............................................................
ARTICLE 18
Reporting Requirements
Section 18.1 Monthly Accounting Reports...................................................................
18.1.1. Monthly Accounting Report Requirement....................................................
18.1.2. Monthly Accounting Report Elements.......................................................
18.1.3. Automated Reports........................................................................
18.1.4. Electronic Reporting.....................................................................
18.1.5. Machine Readable Records.................................................................
Section 18.2 Account Reconciliations......................................................................
18.2.1. Reconciliation Preparation...............................................................
18.2.2. Account Records..........................................................................
Section 18.3 Monthly Remittance Requirements..............................................................
18.3.1. Remittance of Funds......................................................................
18.3.2. Servicer Compensation....................................................................
ARTICLE 19
Transfers and Termination of Servicing
Section 19.1 Transfer of Servicing........................................................................
19.1.1. Transfer Prohibition.....................................................................
19.1.2. Transfer Request.........................................................................
19.1.3. Servicer Liability.......................................................................
19.1.4. Master Servicer's Determination..........................................................
Section 19.2 Termination of Servicing.....................................................................
19.2.1. Grounds for Termination..................................................................
19.2.2. Trustee Notification.....................................................................
19.2.3. Servicer Termination.....................................................................
19.2.4. Consequences of Termination..............................................................
19.2.5. Effect of Termination....................................................................
19.2.6. Custodial Account Threshold Reduction....................................................
19.2.7. Expenses of Termination..................................................................
ARTICLE 20
Miscellaneous Provisions
Section 20.1 Amendments...................................................................................
20.1.1. Unilateral Authority.....................................................................
20.1.2. Consensual Amendment.....................................................................
20.1.3. Trustee Notification.....................................................................
20.1.4. Trustee Disapproval......................................................................
Section 20.2 General Construction.........................................................................
20.2.1. Binding Nature...........................................................................
20.2.2. Entire Agreement.........................................................................
20.2.3. Governing Law............................................................................
20.2.4. Indulgences Not Waivers..................................................................
20.2.5. Titles Not to Affect Interpretation......................................................
20.2.6. Provisions Severable.....................................................................
20.2.7. Servicer an Independent Contractor.......................................................
20.2.8. Third Party Beneficiary..................................................................
20.2.9. Counterparts.............................................................................
Section 20.3 Regulation AB Compliance; Intent of Parties; Reasonableness..................................
EXHIBIT A Xxxxx Fargo & Company Master Guarantee Agreement Regarding
Custodial P&I Account Funds
EXHIBIT B Form of Annual Certification
EXHIBIT C Subservicer Information
This Servicing Agreement, made as of this 28th day of February, 2008
(the "Agreement"), between Xxxxx Fargo Bank, N.A., a national banking
association (the "Servicer") and Xxxxx Fargo Bank, N.A., a national banking
association, (the "Master Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the Servicer is engaged in the business of servicing
residential mortgage loans and the Servicer desires to be retained to service
the Mortgage Loans identified on the Servicer Mortgage Loan Schedule subject to
and in accordance with the terms of this Agreement; and
WHEREAS, the Master Servicer, acting pursuant to the Pooling and
Servicing Agreement related to the Xxxxx Fargo Asset Securities Corporation,
Mortgage Pass-Through Certificates, Series 2008-AR2, will supervise, monitor and
oversee the performance of the Servicer under this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Servicer and the Master Servicer agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions.
ACH: Automated Clearing House.
Additional Form 10-D Disclosure: As defined in the Pooling and
Servicing Agreement.
Additional Form 10-K Disclosure: As defined in the Pooling and
Servicing Agreement.
Adjusted Tangible Net Worth: As of the date of determination
thereof, the sum of: (i) Servicer's Tangible Net Worth; plus (ii) one percent
(1%) of the amount of Servicer's servicing portfolio, as determined by the
Master Servicer in the Master Servicer's reasonable discretion.
Administration Disclosure: With respect to a Pledged Asset Mortgage
Loan, the Pledged Asset Mortgage Loan Administration and Information Sharing
Disclosure and Acknowledgment executed by the related Borrower.
Advance: Any payment, including Credit Counseling Fee Advances, made
with respect to a Mortgage Loan or the related Mortgaged Property by the
Servicer from its own funds made in the nature of an advance pursuant to the
provisions of this Agreement.
Affiliate: Any person or entity controlling, controlled by or under
common control with a specified entity. The term "control" means the power to
direct the management and policies of a person or entity, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise. "Controlling" and "controlled" shall have meanings correlative to the
foregoing.
Amounts Held for Future Distribution: As to any Remittance Date,
amounts on account of (i) all Unscheduled Principal Receipts received after the
last day of the Applicable Unscheduled Principal Receipt Period ending in the
month of such Remittance Date and all related payments of interest on such
principal prepayments and amounts received from the Servicer or a Representing
Party in the month of such Remittance Date as the Purchase Price for any
repurchased Mortgage Loan and (ii) payments which represent early receipt of
scheduled payments of principal and interest due on a date or dates subsequent
to the related Due Date.
Applicable Unscheduled Principal Receipt Period: With respect to the
Type 1 Mortgage Loans and both Full Unscheduled Principal Receipts and Partial
Unscheduled Principal Receipts, the Mid-Month Receipt Period. With respect to
the Type 2 Mortgage Loans and both Full Unscheduled Principal Receipts and
Partial Unscheduled Principal Receipts, the Prior Month Receipt Period.
Appraisal Report: A report setting forth the fair market value of a
Mortgaged Property as determined by an appraiser who, at the time the appraisal
was conducted, met the minimum qualifications of FNMA and FHLMC for appraisers
of conventional residential mortgage loans.
ARM Loan: A Mortgage Loan, if any, the Mortgage Interest Rate of
which is subject to periodic adjustment in accordance with the terms of the
related Mortgage Note.
Assigned Letter of Credit: A Letter of Credit related to a Pledged
Asset Mortgage Loan originated on or after June 14, 2002 where the named
beneficiary has been changed from Xxxxx Fargo Bank to the Trustee.
Assignment: The document which transfers all the rights of the
secured party pursuant to a Security Instrument to a transferee for valid
consideration.
Assumption: The process whereby, on sale or transfer of a legal or
beneficial interest in a Mortgaged Property, the new owner of such Mortgaged
Property becomes legally obligated under the terms of the related existing
Security Instrument, Mortgage Note and any addenda and riders to such Security
Instrument or Mortgage Note. Subsequent to the Assumption, the new owner of the
property shall be deemed to be the Borrower under the related Mortgage Loan
Documents.
Balloon Amount: The remaining principal balance to be paid at
maturity of a Balloon Loan by the related Borrower pursuant to the terms of the
related Mortgage Note.
Balloon Loan: A Mortgage Loan, if any, which amortizes its principal
payments over a period which is longer than the stated maturity of such Mortgage
Loan pursuant to the terms of the related Mortgage Note so as to require the
payment of the Balloon Amount at maturity in order to retire the Mortgage Loan.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
BIF: The Bank Insurance Fund.
Borrower: The individual obligated to repay a Mortgage Loan. (The
Borrower may be the beneficiary or beneficiaries of an Illinois land trust when
the Mortgaged Property is located in Illinois.)
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a legal holiday in the City of New York, State of Maryland, State of Minnesota
or State of Iowa or (iii) a day on which banking institutions in the City of New
York, or the State of Maryland, State of Minnesota or State of Iowa are
authorized or obligated by law or executive order to be closed.
Buydown Agreement: An agreement governing the application of Buydown
Funds with respect to a Mortgage Loan.
Buydown Funds: Money advanced by a builder, seller or other
interested party to reduce a Borrower's Monthly Payment during the initial years
of a Mortgage Loan.
Capitalized Advance Amount: As of any date, the amount of Advances
that have been added to the unpaid principal balance of a Mortgage Loan in
connection with a Servicer Modification.
Certificate Account: A segregated custodial account established by
the Master Servicer into which the Servicer shall remit funds from the related
Custodial P&I Account.
Certificates: As defined in the Pooling and Servicing Agreement.
Certificateholders: As defined in the Pooling and Servicing
Agreement.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time, any successor statutes thereto, and applicable U.S. Department of
the Treasury temporary or final regulations promulgated thereunder.
Commission: The United States Securities and Exchange
Commission.
Condominium Project: Real estate including the separate ownership in
fee, or on a satisfactory leasehold estate, of a particular residential unit
with an indivisible interest in the real estate designated for common ownership
strictly by unit owners.
Condominium Unit: A Single Family Property within a Condominium
Project.
Converted Mortgage Loan: An ARM Loan with respect to which the
Borrower has complied with the applicable requirements of the related Mortgage
Note to convert the related Mortgage Interest Rate to a fixed rate of interest,
and the Servicer has processed such conversion.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Credit Counseling Fee Advances: With respect to a Mortgage Loan in
default or as to which a default is reasonably foreseeable, fees advanced by the
Servicer to an unaffiliated credit counseling organization in connection with
any credit counseling services, including but not limited to counseling
regarding consumer credit, money and debt management and budgeting, used to aid
the Borrower of such Mortgage Loan with respect to payments on such Mortgage
Loan.
Current Value: The appraised value of the related Mortgaged Property
(a) from an Appraisal Report conducted within six (6) months of the use of such
value under this Agreement or (b) determined by such other method acceptable to
the Master Servicer.
Curtailment: A partial prepayment by the Borrower of principal on a
Mortgage Loan that otherwise is current, which prepayment is not accompanied by
an amount representing the full amount of scheduled interest due on the related
Mortgage Loan.
Custodial Agreement: As defined in the Pooling and Servicing
Agreement.
Custodial Buydown Account: An account maintained by the Servicer
specifically to hold all Buydown Funds to be applied to individual Mortgage
Loans.
Custodial PITI Account: An account maintained by the Servicer
specifically to hold all PITI Funds to be applied to individual Mortgage Loans.
Custodial Principal and Interest (P&I) Account: An account
maintained by the Servicer, specifically for the collection of principal and
interest, Insurance Proceeds, Liquidation Proceeds and other amounts received
with respect to Mortgage Loans.
Custodial Subsidy Account: An account maintained by the Servicer
specifically to hold all Subsidy Funds to be applied to individual Mortgage
Loans.
Custodial Taxes and Insurance (T&I) Account: An account maintained
by the Servicer, specifically for the payment of real estate tax assessments and
insurance premiums in respect of Mortgaged Property related to Mortgage Loans.
Custodian: The Corporate Trust Services division of Xxxxx Fargo Bank
or its successor in interest under the Custodial Agreement.
Cut-Off Date: As specified in Article XI of the Pooling and
Servicing Agreement.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation.
Deficient Valuation: With respect to any Mortgage Loan the related
Mortgaged Property of which is involved in a bankruptcy proceeding, the
reduction by the bankruptcy court of the Unpaid Principal Balance of the
Mortgage Note.
Delinquency/Delinquent: A Delinquency with respect to a Mortgage
Loan occurs, or a Mortgage Loan is Delinquent when all or part of a Borrower's
Monthly Payment or, where applicable, an Escrow Item is paid after the
applicable Due Date. For reporting purposes, a Delinquency that remains uncured
for 30 days or more, but less than 60 days, is considered a 30-day Delinquency.
A Delinquency that has been uncured for more than 60 days, but less than 90
days, is considered a 60-day Delinquency. A Delinquency that has been uncured
for 90 days or more is considered a 90-day Delinquency. The foregoing shall be
determined based on an assumption of a year comprised of twelve 30-day months.
Depositor: Xxxxx Fargo Asset Securities Corporation.
Determination Date: The 17th day of the month in which the related
Distribution Date occurs.
Directly Operate: With respect to any REO, the direct or indirect
furnishing or rendering of services to the tenants thereof, management or
operation of such REO, the holding of such REO primarily for sale to customers,
performance of any construction work thereon or any use of such REO in a trade
or business, in each case other than with the approval of the Master Servicer;
provided, however, that the Servicer shall not be considered to Directly Operate
an REO solely because it establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO.
Distribution Date: As defined in the Pooling and Servicing
Agreement.
Document Transfer Date: As defined in the Pooling and Servicing
Agreement.
Document Transfer Event: As defined in the Pooling and Servicing
Agreement.
Due Date: With respect to a Mortgage Loan, the day of each month on
which a Monthly Payment and, where applicable, any Escrow Funds payment is due
as stated in the related Mortgage Note. The Due Date for all Mortgage Loans
shall be the first day of each month.
Due-On-Sale Clause: The clause in a Security Instrument requiring
the payment of the Unpaid Principal Balance of the related Mortgage Loan upon
the sale of, or the transfer of an interest in, the related Mortgaged Property.
Eligible Account: As defined in the Pooling and Servicing Agreement.
Eligible Custodial P&I Account: As defined in Section 6.1.2.
Eligible Investments: As defined in the Pooling and Servicing
Agreement.
Errors and Omissions Policy: An insurance policy naming the Trustee,
its successors and assigns as loss payees relative to losses caused by errors or
omissions of the Servicer and its personnel, including, but not limited to
losses caused by the failure to pay insurance premiums or taxes, to record or
perfect liens, to effect valid transfers of Mortgage Notes, or to properly
service Mortgage Loans.
Escrow Funds: All funds collected with respect to a Mortgage Loan by
the Servicer to cover related Escrow Items according to the provisions of this
Agreement.
Escrow Item: An expense required to be paid by a Borrower under the
related Security Instrument including, without limitation, taxes, special
assessments, ground rents, water, sewer and other governmental impositions or
charges that are or may become liens on the related Mortgaged Property prior to
that of the related Security Instrument, as well as Hazard Insurance, Flood
Insurance and Primary Mortgage Insurance premiums.
Exchange Act: The Securities Exchange Act of 1934, as amended.
FDIC: Federal Deposit Insurance Corporation and its successors.
FHA: The Federal Housing Administration and its successors.
FHLMC: Federal Home Loan Mortgage Corporation and its successors.
Fidelity Bond: An insurance policy naming the Trustee, its
successors and assigns as loss payees relative to losses caused by improper or
unlawful acts of the Servicer's personnel.
Final Scheduled Maturity Date: As defined in the Pooling and
Servicing Agreement.
Final Title Condition Report: A title condition report issued by
American Land Title Company, Inc., a wholly-owned subsidiary of the Servicer,
evidencing that according to the records of the county in which the Mortgaged
Property is located, the Security Instrument is a valid first lien on the
related Mortgaged Property subject only to permitted encumbrances.
Flood Insurance: An insurance policy insuring against flood damage
to a Mortgaged Property, where required.
FNMA: Federal National Mortgage Association and its successors.
Form 8-K: As defined in the Pooling and Servicing Agreement.
Form 8-K Disclosure Information: As defined in the Pooling and
Servicing Agreement.
Form 10-D: As defined in the Pooling and Servicing Agreement.
Form 10-K: As defined in the Pooling and Servicing Agreement.
Full Unscheduled Principal Receipt: Any Unscheduled Principal
Receipt with respect to a Mortgage Loan (i) in the amount of the outstanding
principal balance of such Mortgage Loan and resulting in the full satisfaction
of such Mortgage Loan or (ii) representing Liquidation Proceeds other than
Partial Liquidation Proceeds.
GNMA: Government National Mortgage Association and its successors.
GPM (or GPARM) Loan: A fixed rate Mortgage Loan or ARM Loan, if any,
that provides during a portion of its term that the interest portion of the
Monthly Payment on such Mortgage Loan shall be less than the full amount of
interest due on such Mortgage Loan based on the related Mortgage Interest Rate.
Gross Margin: With respect to each ARM Loan, the fixed percentage
specified in the related Mortgage Note that is added to the applicable Index on
each Interest Adjustment Date to determine the new Mortgage Interest Rate for
such ARM Loan.
Group: If applicable, as defined in the Pooling and Servicing
Agreement.
Hazard Insurance: A fire and casualty extended coverage insurance
policy insuring against loss or damage from fire and other perils covered within
the scope of standard extended hazard coverage naming the Servicer, its
successors and assigns, as a mortgagee under a standard mortgagee clause,
together with all riders and endorsements thereto.
HUD: The United States Department of Housing and Urban Development
and its successors.
Index: With respect to each ARM Loan, the applicable index specified
in the related Mortgage Note that is added to the related Gross Margin on each
Interest Adjustment Date to determine the new Mortgage Interest Rate for such
ARM Loan.
Insurance Policy: Any insurance policy for a Mortgage Loan required
hereunder, including, without limitation, Primary Mortgage Insurance, Hazard
Insurance, Flood Insurance, Pool Insurance and Title Insurance policies.
Insurance Proceeds: Proceeds from an Insurance Policy, other than
such proceeds which are applied by the Borrower or held to be applied by the
Borrower to the restoration of the related Mortgaged Property.
Interest Adjustment Date: With respect to each ARM Loan, the date on
which the related Mortgage Interest Rate changes in accordance with the terms of
such Mortgage Note, the first of which is set forth in such Mortgage Note and on
the respective Servicer Mortgage Loan Schedule.
Letter of Credit: With respect to a Pledged Asset Mortgage Loan, a
letter of credit issued by the Pledge Holder which may be drawn on by the
Servicer in the event that the related Pledged Asset Mortgage Loan continues in
default for 90 days.
Liquidation: Application of full payment to a Mortgage Loan which
results in the release of the lien of the related Security Instrument on any
related Mortgaged Property, whether through foreclosure and sale of the related
REO, condemnation, prepayment in full or otherwise, or the realization of all
sums from the final disposition of the related REO, provided that when a PMI
Advance is made with respect to a Mortgage Loan, for purposes of Sections 7.6,
7.7, 18.1 and 18.3, the Liquidation of a Mortgage Loan will be deemed to have
occurred upon the application of all payments to the Mortgage Loan other than
the Primary Mortgage Insurance proceeds covered by such PMI Advance.
Liquidation Proceeds: The amount received or advanced by the
Servicer which ultimately relates to the Liquidation of a Mortgage Loan,
including any PMI Advances and amounts received by drawing on a Letter of Credit
in connection with the Liquidation of a Mortgage Loan.
Liquidation Profits: As defined in the Pooling and Servicing
Agreement.
Loan Group: If applicable, as defined in the Pooling and Servicing
Agreement.
Loan Originator: The entity that closes a Mortgage Loan in its own
name.
Loan-to-Value (LTV): The ratio that results when the Unpaid
Principal Balance of a Mortgage Loan is divided by the Value of the related
Mortgaged Property.
Lost Note Affidavit: An affidavit executed by an Officer of the
Servicer identifying the applicable Mortgage Note, stating that such Mortgage
Note has not been located after a thorough and diligent search and agreeing to
indemnify the purchaser of the Mortgage Loan against any loss from the
unavailability of the original Mortgage Note. Attached to such affidavit shall
be a true and correct copy of the original Mortgage Note.
Master Servicer: Xxxxx Fargo Bank or any successors or assigns.
Initially, the maser servicing function will be performed by the Corporate Trust
Services division of Xxxxx Fargo Bank.
Master Servicer Loan Number: A unique number assigned by the Master
Servicer to each Mortgage Loan set forth in the Servicer Mortgage Loan Schedule.
Maximum Lifetime Mortgage Interest Rate: With respect to each ARM
(or GPARM) Loan, the interest rate set forth in the related Mortgage Note as the
maximum Mortgage Interest Rate thereunder.
Maximum Negative Amortization Amount: With respect to any Mortgage
Loan that provides for negative amortization, the maximum principal balance
which is permitted under the terms of the related Mortgage Note.
MERS: Mortgage Electronic Registration Systems, Inc. or its
designee.
Mid-Month Receipt Period: With respect to each Remittance Date, the
one month period beginning on the Determination Date occurring in the calendar
month preceding the month in which such Remittance Date occurs and ending on the
day preceding the Determination Date immediately preceding such Remittance Date.
Minimum Lifetime Mortgage Interest Rate: With respect to each ARM
Loan, the interest rate set forth in the related Mortgage Note as the minimum
Mortgage Interest Rate thereunder, if any.
Month End Interest: In the event that any Prepayments in Full of any
Mortgage Loans are received by the Servicer after the Applicable Unscheduled
Principal Receipt Period in the month in which such prepayments occurred, the
lesser of (i) the aggregate of the difference for each such Mortgage Loan
between the interest payment that would have been paid on such Mortgage Loan
that was prepaid through the last day of the month in which such prepayment
occurred and the interest payment actually received by the Servicer on such
Mortgage Loan that was prepaid and (ii) the product of 1/12th of 0.20% and the
aggregate of the Scheduled Principal Balance of all the Mortgage Loans serviced
hereunder.
Month End Interest Shortfall: The excess of the amount described in
clause (i) of the definition of Month End Interest over the amount described in
clause (ii) of the definition thereof.
Monthly Accounting Reports: The reports due from the Servicer on a
monthly basis (in the case of Type 2 Mortgage Loans, due no later than the tenth
calendar day of the month, or the preceding Business Day if the tenth day is not
a Business Day and, in the case of Type 1 Mortgage Loans, due no later than the
21st calendar day of the month, or the preceding Business Day if the 21st day is
not a Business Day) relative to all Mortgage Loans serviced by the Servicer,
which reports are required to be submitted to the Master Servicer.
Monthly Payment: With respect to any Mortgage Loan, the monthly
interest payment or the scheduled monthly payment of principal and interest due
in the applicable month under the terms of the related Mortgage Note, after
giving effect to (i) any related Debt Service Reduction and any Deficient
Valuation that affects the amount of the monthly payment due on such Mortgage
Loan and (ii) any Servicer Modification that affects the amount of the monthly
payment due on such Mortgage Loan.
Monthly Remittance: The Servicer's aggregate payment due each month
to the Certificate Account as specified in Section 18.3.1.
Mortgage Interest Rate: The interest rate payable by the Borrower on
a Mortgage Loan according to the terms of the Mortgage Note which, in the case
of ARM Loans, may be adjusted periodically as provided in such Mortgage Note.
Mortgage Loan: A mortgage loan identified on the Servicer Mortgage
Loan Schedule. "Mortgage Loan" includes all of the Trustee's right, title and
interest in and to such Mortgage Loan, including, without limitation, the
related Mortgage Loan Documents and all other material and information collected
by the Servicer in connection with the Mortgage Loan including Monthly Payments,
Liquidation Proceeds, Insurance Proceeds and all other rights, benefits and
proceeds arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents. With respect to a Mortgage Loan, the
documents to be delivered to the Custodian pursuant to Section 2.01 of the
Pooling and Servicing Agreement, and all other documents described in Article 9
hereof.
Mortgage Loan Purchase Agreement: As defined in the Pooling and
Servicing Agreement.
Mortgage Note: A manually executed written instrument evidencing the
related Borrower's promise to repay a stated sum of money, plus interest, to the
related Loan Originator by a specific date according to a schedule of monthly
principal and interest payments.
Mortgage Note Assumption Rider: A rider attached to a Mortgage Note
which states the terms upon which an Assumption may occur, including, but not
limited to, consent in writing by the insurer under any Primary Mortgage
Insurance Policy with respect to the related Mortgage Loan.
Mortgage Pass-Through Certificates: The specific series of Xxxxx
Fargo Asset Securities Corporation, mortgage pass-through certificates specified
on page 1 of this Agreement.
Mortgaged Property: Land, improvements thereon and other property
subject to the lien of a Security Instrument, which may include Co-op Shares or
residential long-term leases, securing repayment of the debt evidenced by the
related Mortgage Note.
Mortgagee: The secured party to which a Security Instrument
initially grants a lien on the related Mortgaged Property.
Net Mortgage Interest Rate: With respect to a Mortgage Loan, the
difference between (a) the Mortgage Interest Rate on such Mortgage Loan and (b)
the Servicing Fee Percentage.
Non-Assigned Letter of Credit: A Letter of Credit where the named
beneficiary is Xxxxx Fargo Bank.
Non-Recoverable Advance: Any amount previously advanced by the
Servicer with respect to a Mortgage Loan which the Servicer has determined,
pursuant to the terms of this Agreement, not to be recoverable from Insurance
Proceeds, Liquidation Proceeds or other payments with respect to such Mortgage
Loan.
Notice of Periodic Adjustment: With respect to each ARM Loan, a
notice provided to the Borrower of any changes or adjustments to the related
Mortgage Interest Rate or the related Monthly Payment.
Officer: An officer of a corporation or a principal of a
partnership, who is authorized to execute documents on behalf of his corporation
or partnership, respectively.
Officer's Certificate: A certificate signed by the Chairman of the
Board or a Vice President or an Assistant Vice President and certified by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer or, in the case of Section 17.4.1 a certificate
signed by a servicing Officer of the Servicer, and delivered to the Master
Servicer as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Master Servicer, and who may be in-house
or outside counsel to the Servicer but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the taxation, or status
for tax purposes, of the Trustee.
Owner Mortgage Loan File: With respect to each Mortgage Loan, a file
maintained by the Custodian for such Mortgage Loan, which file contains the
documents specified in Section 2.01(a) of the Pooling and Servicing Agreement,
as well as any other documents required to be added to the Owner Mortgage Loan
File pursuant to the Pooling and Servicing Agreement.
P&I Advance: An advance by the Servicer of any principal and
interest payments not timely paid by the related Borrower (other than with
respect to a Balloon Loan, any amounts of principal payments in respect of
Balloon Amounts) as required pursuant to Section 17.1.1.
Partial Liquidation Proceeds: As to any Remittance Date, Liquidation
Proceeds received by the Servicer on a Mortgage Loan during the related Partial
Liquidation Receipt Period other than those Liquidation Proceeds received during
such Partial Liquidation Receipt Period which result from the complete and final
Liquidation of such Mortgage Loan.
Partial Liquidation Receipt Period: As to any Remittance Date, the
period from and including the Determination Date occurring in the month
preceding the month of such Remittance Date (or, in the case of the first
Remittance Date, from and including the Cut-off Date) to but not including the
Determination Date occurring in the month of such Remittance Date.
Partial Unscheduled Principal Receipt: An Unscheduled Principal
Receipt which is not a Full Unscheduled Principal Receipt.
Payment Adjustment Date: With respect to each ARM Loan, the date on
which the Borrower's Monthly Payment changes in accordance with the terms of the
related Mortgage Note.
Periodic Payment Cap: With respect to an ARM Loan, the limit on the
percentage increase that may be made on the related Monthly Payment on any
Payment Adjustment Date, as set forth in the related Mortgage Note.
Periodic Rate Cap: With respect to an ARM Loan, the limit, expressed
as incremental percentage points, on the increase or decrease that may be made
to the related Mortgage Interest Rate on any Interest Adjustment Date from such
Mortgage Interest Rate immediately prior to such Interest Adjustment Date, as
set forth in the related Mortgage Note.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust or unincorporated organization.
PITI Funds: Funds contributed by a builder on behalf of a Borrower
in order to reduce the payments required from the Borrower for a specified
period in specified amounts.
PITI Loan: A Mortgage Loan, if any, as to which a builder makes
payments of principal, interest, taxes and/or insurance on behalf of the
Borrower for a specified period of time.
Pledge Holder: The entity which issued a Letter of Credit.
Pledged Asset Mortgage Loan : A Mortgage Loan as to which, at the
time of origination, a Letter of Credit was issued in favor of the initial
holder of such Mortgage Loan.
PMI Advance: As defined in Section 17.7.1.
Pool Insurance: An insurance policy insuring against certain credit
risk losses on certain Mortgage Loans up to a certain amount.
Pool Insurer: With respect to any Mortgage Loan, the insurer under
the Pool Insurance policy relating to such Mortgage Loan.
Pooling and Servicing Agreement: The pooling and servicing agreement
among Xxxxx Fargo Asset Securities Corporation, as depositor, Xxxxx Fargo Bank,
N.A., as master servicer, the Trustee, and, if applicable, the Trust
Administrator, relating to the issuance of the Mortgage Pass-Through
Certificates.
Preliminary Title Report: A report issued by a title insurance
company in anticipation of issuing a Title Insurance policy which evidences
existing liens and gives a preliminary opinion as to the absence of any
encumbrance on title to a Mortgaged Property, except liens to be removed on or
before purchase or refinance, as the case may be, by the Borrower and Permitted
Encumbrances.
Prepayment In Full: With respect to any Mortgage Loan, any payment
by the Borrower in the amount of the outstanding principal balance of such
Mortgage Loan which is received in advance of its Due Date and is not
accompanied by an amount representing scheduled interest for any period
subsequent to the date of prepayment.
Primary Mortgage Insurance: Insurance obtained from a Primary
Mortgage Insurer which insures the holder of a Mortgage Note against loss in the
event the related Borrower defaults under such Mortgage Note or the related
Security Instrument, including all riders and endorsements thereto.
Primary Mortgage Insurer: With respect to any Mortgage Loan, the
insurer under the Primary Mortgage Insurance policy relating to such Mortgage
Loan.
Prior Month Receipt Period: With respect to each Remittance Date,
the calendar month preceding the month in which such Remittance Date occurs.
Property Inspection Report: A report, submitted by the Servicer to
the Master Servicer, describing the related Mortgaged Property.
Prospectus: As defined in the Pooling and Servicing Agreement.
Prudent Servicing Practices: Such practices observed generally by
servicers in discharging their servicing obligations in a prudent manner in
accordance with industry standards for mortgage loans similar to the Mortgage
Loans.
PUD (Planned Unit Development): A parcel of real estate that
contains property and improvements owned and maintained by a homeowners'
association, corporation or trust for the enjoyment and use of individual PUD
Unit owners within that parcel of land. The shared portions of the parcel are
known as common property.
PUD Unit: A single family residential property within a PUD.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Servicer pursuant to Section 5.1.3 or Section 8.3.2 hereof, an
amount equal to (a) the Unpaid Principal Balance of the Mortgage Loan, plus (b)
accrued interest thereon at the Mortgage Interest Rate through the last day of
the month in which the purchase occurs, and, if the Servicer is the entity
paying the Purchase Price, minus (c) any unreimbursed advances of principal and
interest made by the Servicer on such Mortgage Loan and any outstanding
Servicing Fee owed with respect to such Mortgage Loan. Further, in connection
with any such purchase of a Mortgage Loan as a result of a breach of a
representation or warranty under this Agreement, the Servicer shall provide the
Trustee with an indemnity, in form and substance satisfactory to the Master
Servicer, against additional costs, expenses and taxes arising out of the
repurchase. With respect to any Mortgage Loan purchased or repurchased from the
Trustee pursuant to an agreement other than this Agreement, the purchase price
specified in such other agreement.
Rating Agency: As defined in the Pooling and Servicing Agreement.
Real Estate Owned (REO): Any Mortgaged Property the title to which
is acquired on behalf of the Trustee through foreclosure, deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
defaulted Mortgage Loan.
Realized Loss: As to any defaulted Mortgage Loan, any loss realized
by the Trustee of such Mortgage Loan as calculated pursuant to Section 7.7
hereof.
Recovery : As defined in the Pooling and Servicing Agreement.
Reference Bank: Xxxxx Fargo Bank, N.A. or if such entity is no
longer lending money or no longer quoting a prime rate, such other entity as the
Master Servicer may specify by written notice to the Servicer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
publicly provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 (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.
Relevant Servicing Criteria: The Servicing Criteria applicable to
the Servicer, as set forth on Exhibit R to the Pooling and Servicing Agreement.
For clarification purposes, multiple parties can have responsibility for the
same Relevant Servicing Criteria. With respect to a Subcontractor or Subservicer
engaged by the Servicer, the term "Relevant Servicing Criteria" refers to the
portion of the Relevant Servicing Criteria applicable to the Servicer insofar as
the functions required to be performed by the Servicer are to be performed by
the Subcontractor or Subservicer, as applicable.
REMIC: The segregated pool or pools of assets designated as one or
more real estate mortgage investment conduits, within the meaning of the REMIC
Provisions, pursuant to the Pooling and Servicing Agreement.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of the Code, and related provisions, and regulations and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time and including any proposed legislation or regulations which, as proposed,
would have an effective date prior to enactment thereof.
Remittance Date: The 24th day of each month (or the preceding
Business Day if the 24th day is not a Business Day). Each month, the Servicer
must transfer all required funds from the Custodial P&I Account to the
Certificate Account on or before the Remittance Date.
Rents from Real Property: With respect to any REO, gross income of
the character described in Section 856(d) of the Code (generally, rent for the
use of real property, the amount of which is not dependent, in whole or in part,
upon the income or profit of any person, including certain payments for certain
services and personal property incidental to and customarily provided in
connection with the rental of such real property.)
REO Disposition: The receipt by the Servicer of Liquidation Proceeds
and other payments and recoveries (including proceeds of a final sale) from the
sale or other disposition of the REO.
REO Disposition Period: The period of time in which the Servicer
shall dispose or cooperate with the Trustee in disposing of an REO as set forth
in Section 14.4.2.
Reportable Event: As defined in the Pooling and Servicing Agreement.
Representing Party: A Person that has transferred Mortgage Loans,
directly or through one or more intermediaries, to the Trustee pursuant to an
agreement for the sale of Mortgage Loans pursuant to which a Representing Party
has made representations and warranties with respect to certain Mortgage Loans,
and under which the Trustee, its successors and assigns has recourse against
such Representing Party for any breach thereunder with respect to such Mortgage
Loans.
Retained Mortgage Loan File: A file for each Mortgage Loan
maintained by the Servicer prior to any Document Transfer Date and by the
Custodian after any Document Transfer Date that contains the documents specified
in Section 2.01(b) of the Pooling and Servicing Agreement and any additional
documents required to be added to the Retained Mortgage Loan File pursuant to
the Pooling and Servicing Agreement.
SAIF: The Savings Association Insurance Fund.
Xxxxxxxx-Xxxxx Certification: As defined in the Pooling and
Servicing Agreement.
Scheduled Principal Balance: With respect to each Mortgage Loan (or
related REO), the principal balance of such Mortgage Loan as of the applicable
Due Date calculated by taking into account the application of any Monthly
Payments due on or before such Due Date (whether or not such Monthly Payments
were received from the Borrower), and Curtailments, Insurance Proceeds or
Liquidation Proceeds, and Realized Losses received or realized by the Servicer
prior to such Due Date.
Securities Act: The Securities Act of 1933, as amended.
Security Instrument: A written instrument creating a valid first
lien on a Mortgaged Property. A Security Instrument may be in the form of a
mortgage, deed of trust, deed to secure debt or security deed, including any
riders and addenda thereto.
Servicer: Xxxxx Fargo Bank, the entity that has entered into this
Agreement with the Master Servicer and any successors or assigns of Xxxxx Fargo
Bank. Initially the servicing functions will be performed by the Xxxxx Fargo
Home Mortgage division of Xxxxx Fargo Bank.
Servicer Loan Mortgage Number: A unique number assigned by the
Servicer to a Mortgage Loan.
Servicer Modification: A modification to the terms of a Mortgage
Loan, in accordance with the terms of Sections 3.1.2 and 12.3.6, as to which the
Mortgagor is in default or as to which, in the judgment of the Servicer, default
is reasonably foreseeable.
Servicer Mortgage Loan File: A file maintained by the Servicer for
each Mortgage Loan that contains the documents specified in Section 9.2 hereof,
as well as any other documents that come into the Servicer's possession with
respect to a Mortgage Loan.
Servicer Mortgage Loan Schedule: The Mortgage Loans on the Mortgage
Loan Schedule (as defined in the Pooling and Servicing Agreement) that are
serviced by the Servicer.
Servicing Advances: All customary, reasonable and necessary
"out-of-pocket" costs and expenses incurred by the Servicer (including
reasonable attorneys' fees and disbursements) in the performance of its
servicing obligations, other than such costs and expenses otherwise expressly
covered under Article 17 hereof.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: For each Mortgage Loan, the compensation due the
Servicer in an amount equal to the product of (i) one-twelfth of the Servicing
Fee Percentage and (ii) the Scheduled Principal Balance of the Mortgage Loan as
of the immediately preceding Due Date (without taking into account any payment
of principal due on such Due Date).
Servicing Fee Percentage: With respect to each Mortgage Loan, the
percentage specified on the Servicer Mortgage Loan Schedule.
Single Family Property: A one-unit residential property.
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.
Subservicer: Any Person that services the Mortgage Loans on behalf
of the Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Servicer under this Agreement that are identified in Item 1122(d) of Regulation
AB.
Subsidy Funds: Funds contributed by the employer of a Borrower in
order to reduce the payments required from the Borrower for a specified period
in specified amounts.
Subsidy Loan: A Mortgage Loan, if any, subject to a temporary
interest subsidy agreement pursuant to which the monthly interest payments made
by the related Borrower will be less than the scheduled monthly interest
payments on such Mortgage Loan, with the resulting difference in interest
payments being provided by the employer of the Borrower.
Tangible Net Worth: As of the date of determination thereof, the par
value (or value stated on the Servicer's books) of the capital stock of all
classes of the Servicer, plus, or minus in the case of a deficiency, the amount
of paid in capital and retained earnings of the Servicer, all determined in
accordance with generally accepted accounting principles as are then in effect.
The Master Servicer may exclude assets that are unacceptable, in the Master
Servicer's reasonable discretion, from the determination of the Servicer's
Tangible Net Worth.
T&I Advance: An advance by the Servicer of any taxes and insurance
premiums due with respect to any Mortgage Loan.
Threshold Amount: With respect to any Custodial P&I Account, (i)
$100,000 or, in the case of any Eligible Custodial P&I Account, the aggregate
amount on deposit therein (i.e., an unlimited amount); or (ii) after any notice
has been given pursuant to Section 19.2.6, the amount specified in such notice.
Title Insurance: An American Land Title Association (ALTA) mortgage
loan title policy form 1970, or other form of Title Insurance Policy acceptable
to FNMA or FHLMC, including all riders and endorsements thereto, insuring that
the Security Instrument constitutes a valid first lien on the related Mortgaged
Property subject only to permitted encumbrances.
Transfer of Ownership: Includes, but is not limited to, the
conveyance of a Mortgaged Property, whether legal or equitable, voluntary or
involuntary, by any of the following methods:
(a) outright sale;
(b) deed;
(c) installment sale contract;
(d) land contract;
(e) contract for deed;
(f) leasehold interest with the term greater than three years;
(g) lease with option to purchase;
(h) land trust; or
(i) any other conveyance of an interest in real property, including
those involving secondary financing.
Trust : The trust created by the Pooling and Servicing Agreement.
Trust Administrator: If applicable, the trust administrator
specified in the Pooling and Servicing Agreement, its successors and assigns.
Trustee: The trustee specified in the Pooling and Servicing
Agreement, its successors and assigns.
Type 1 Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan Schedule as Type 1 Mortgage Loans.
Type 2 Mortgage Loans: The Mortgage Loans identified on the Mortgage
Loan Schedule as Type 2 Mortgage Loans.
Unpaid Principal Balance: With respect to any Mortgage Loan, the
outstanding principal balance payable by the Borrower under the terms of the
Mortgage Note.
Unscheduled Principal Receipt: Any Mortgagor payment or other
recovery of principal on a Mortgage Loan which is received in advance of its Due
Date and is not accompanied by an amount representing scheduled interest for any
period subsequent to the date of prepayment, including, without limitation,
prepayments of principal (whether full or partial), Liquidation Proceeds,
Partial Liquidation Proceeds, Insurance Proceeds, proceeds of REO Dispositions,
Recoveries and proceeds received from any condemnation award or proceeds in lieu
of condemnation other than that portion of such proceeds released to the
mortgagor in accordance with the terms of the Mortgage Loan Documents or Prudent
Servicing Practices and excluding any proceeds of a repurchase of a Mortgage
Loan by the Servicer or a Representing Party.
Value: The lesser of the appraised value or sales price of the
related Mortgaged Property at the time the Mortgage Loan is closed. For a
refinanced Mortgage Loan, the Value of the related Mortgaged Property is its
appraised value at the time the refinanced Mortgage Loan is closed.
Xxxxx Fargo Bank: Xxxxx Fargo Bank, N.A., or its successor in
interest.
ARTICLE 2
Construction
Section 2.1 Legal Construction
2.1.1. Compliance with Applicable Law. The obligations of the
Servicer pursuant to this Agreement shall at all times be performed in
compliance with all applicable laws.
2.1.2. Potential Conflict. If any obligation of the Servicer
pursuant to this Agreement shall give rise to a potential conflict with
applicable law, such obligation shall be construed so as to (a) comply with all
applicable laws and (b) effectuate with respect to such obligations, to the
fullest extent permitted by law, the intention of the parties hereto as
expressed in this Agreement.
2.1.3. Consistent Legal Compliance. The fact that certain provisions
of this Agreement contain language which expressly requires compliance with all
applicable laws, shall not give rise to an implication that other provisions,
which do not expressly include such language, operate in derogation of the
requirement for such legal compliance.
2.1.4. General Interpretive Rules. For purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
(i) the terms defined in this Agreement have the meanings assigned to them in
this Agreement and include the plural as well as the singular, and the use of
any gender herein shall be deemed to include the other gender; (ii) reference
herein to "Article", "Section", "Clause", and other subdivisions, and to
"Exhibits", without reference to a document, are to designated Articles,
Sections, Clauses and other subdivisions of, and to Exhibits to, this Agreement;
(iii) reference to a Clause without further reference to a Section is a
reference to such Clause as contained in the same Section in which the reference
appears, and this rule shall also apply to other subdivisions; (iv) "including"
means "including but not limited to"; and (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.
2.1.5. Construction of Provisions. Although certain provisions of
this Agreement contain express language which precludes the Servicer's recovery
of, or reimbursement for, expenses incurred hereunder, no inference to the
contrary shall be drawn from absence of such, or similar, language in any other
provision hereof regarding expenses.
Section 2.2 Servicer Practices
2.2.1. Prudent Servicing Practices. Where not inconsistent with the
provisions of this Agreement, the Servicer shall at all times perform its
obligations hereunder in accordance with Prudent Servicing Practices, which
shall not be less exacting than the Servicer employs and exercises in servicing
and administering mortgage loans for its own account, or for the account of FNMA
or FHLMC, including exploring alternatives to foreclosure to mitigate Realized
Losses.
2.2.2. Non-Discrimination Practices. The Servicer shall at all times
perform its obligations under this Agreement so as to (a) treat Borrowers on the
basis of their individual merits and (b) not discriminate against Borrowers on
the basis of their race, creed or national origin.
Section 2.3 General Provisions
2.3.1. Servicer's Agreement. The Servicer agrees with the Master
Servicer to service the Mortgage Loans in accordance with the provisions of this
Agreement and, to the extent of any instructions of the Master Servicer that are
given, such instructions and, subject to the provisions hereof and without any
further instruction by the Master Servicer except as shall be expressly provided
for herein, shall have full power and authority to do all things necessary in
connection therewith.
2.3.2. Term of Agreement. Except as otherwise provided herein, the
duties, responsibilities and obligations to be performed and carried out by the
Servicer under this Agreement shall commence upon the execution of this
Agreement and shall continue until (a) each Mortgage Loan is (i) liquidated or
(ii) otherwise paid in full, (b) all payments related thereto are remitted in
accordance with this Agreement, and (c) all obligations hereunder related
thereto are discharged.
2.3.3. Amended Mortgage Loan Schedule. From time to time as
additional Mortgage Loans are transferred to be serviced hereunder by the
Servicer, the Servicer Mortgage Loan Schedule shall be amended by the Master
Servicer to include the new Mortgage Loans. Due to defects in documentation and
for other reasons, certain Mortgage Loans referred to in the Servicer Mortgage
Loan Schedule may be deleted and other Mortgage Loans may be added. The Servicer
hereby agrees to any such addition and/or deletion of any Mortgage Loans and, in
the event any Mortgage Loans are added and/or deleted from the Servicer Mortgage
Loan Schedule, the Servicer authorizes the Master Servicer to amend the Servicer
Mortgage Loan Schedule. The Master Servicer shall provide the Servicer with the
corrected and updated Servicer Mortgage Loan Schedule.
2.3.4. Assignment and Replacement. The Servicer acknowledges and
agrees that in the event that the Master Servicer resigns as Master Servicer
under this Agreement, any successor master servicer has the right to assume the
Master Servicer's rights and obligations and to enforce the Servicer's
obligations under this Agreement.
2.3.5. Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received upon actual
receipt of registered or certified mail, postage prepaid, return receipt
requested, addressed as set forth below:
(a) if to the Master Servicer:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Director of Master Servicing
(b) if to the Servicer:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx Xxxxx, MAC X2302-033
Fax: 000-000-0000
with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel, MAC X2401-06T
(c) if to the Custodian:
Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: WFMBS 2008-AR2
(d) if to the Trustee:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
(e) if to the Depositor:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance
Any party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.
2.3.6. Change of Accountants. During the term of this Agreement, the
Servicer shall not change, or make any substitution of, its certified public
accountants except upon written notice to the Master Servicer given 30 days
prior to such change or substitution.
ARTICLE 3
REMIC Compliance
Section 3.1 General
3.1.1. Applicability. The provisions of this Article 3 apply to all
the Mortgage Loans or Mortgaged Properties unless the Mortgage Loan has not been
transferred (or been identified for a future transfer) to an entity with respect
to which an election to be characterized as a REMIC has been (or is expected to
be) made.
3.1.2. Modifications of Mortgage. The Servicer may waive, modify or
vary any term of any Mortgage Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any
Mortgagor; provided, however, that (unless (i) the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable, and (ii) in the Servicer's reasonable
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Certificateholders in the aggregate) the Servicer
shall not permit any modification with respect to any Mortgage Loan that would
change the Mortgage Interest Rate, defer or forgive the payment thereof of any
principal or interest payments, reduce or increase the outstanding principal
amount (except for actual payments of principal) or extend the final maturity
date with respect to such Mortgage Loan. Notwithstanding the foregoing, the
Servicer shall not permit any modification with respect to any Mortgage Loan
that would (x) effect an exchange or reissuance of such Mortgage Loan under
Section 1.860G-2(b) of the Treasury Regulations, (y) cause the 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 Day under the REMIC
Provisions or, (z) extend the final maturity date with respect to any Mortgage
Loan beyond the Final Scheduled Maturity Date for the Certificates, or if the
Mortgage Loans are divided into two or more Loan Groups, the Final Scheduled
Maturity Date for the Certificates in the related Group. The Servicer shall be
responsible for the determination that any extension of the maturity date of the
Mortgage Loan complies with the preceding sentence. For the avoidance of doubt,
a waiver, modification, postponement or indulgence shall be deemed to not
materially adversely affect the Certificateholders in the aggregate if the
Servicer determines that such waiver, modification, postponement or indulgence
is reasonably likely to increase the proceeds of the related Mortgage Loan over
the amount expected to be collected pursuant to foreclosure. As used in this
Agreement "reasonably foreseeable" when used in the context of a default means
that the Servicer has assessed the Mortgagor's current ability to pay its
obligations with respect to the Mortgage Loan, and has reasonably determined
that the Mortgagor is unable to make the payments required under the Mortgage
Loan in the foreseeable future. Nothing in this Section 3.1.2 shall be construed
to limit the ability of the Servicer to arrange for the sale of a Mortgaged
Property pursuant to Section 13.3.3.
3.1.3. Indemnification with Respect to Certain Taxes and Loss of
REMIC Status. In the event that the REMIC fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or contribution subject to taxation under the REMIC
Provisions due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the Trustee, the
Trust Administrator (if applicable), the Master Servicer and the holders of the
related Certificates against any and all losses, claims, damages, liabilities or
expenses ("REMIC Failure Losses") resulting from such negligence; provided,
however, that the Servicer shall not be liable for any such REMIC Failure Losses
attributable to the action or inaction of the Master Servicer or the holders of
such Certificates nor for any such REMIC Failure Losses resulting from
misinformation provided by the Master Servicer on which the Servicer has relied.
The foregoing shall not be deemed to limit or restrict the rights and remedies
of the other holders of the Certificates now or hereafter existing at law or in
equity.
Section 3.2 REO Qualification
3.2.1. Foreclosure Property. Notwithstanding any other provision of
this Agreement, the Servicer, shall not rent, lease, or otherwise earn income on
behalf of the REMIC with respect to any REO which might cause such REO to fail
to qualify as "foreclosure" property within the meaning of section 860G(a)(8) of
the Code (e.g., rent based upon the earnings of the lessee) or result in the
receipt by the REMIC of any "income from non-permitted assets" within the
meaning of section 860F(a)(2) of the Code (e.g., income attributable to any
asset which is not a qualified mortgage, a cash flow or reserve fund investment,
or personal property not incidental to the REO) or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions unless
the Master Servicer has received an Opinion of Counsel (at the Servicer's
expense) to the effect that, under the REMIC Provisions and (where appropriate,
any relevant proposed legislation) any income generated for the REMIC by the REO
would not result in the imposition of a tax upon the REMIC. In general, the
purpose of this Section 3.2 and the REMIC Provisions (which this section is
intended to implement) is to ensure that the income earned by the REMIC is
passive type income such as interest on mortgages and passive type rental income
on real property.
3.2.2. Foreclosure Property Qualification Restrictions. Without
limiting the generality of the foregoing, the Servicer shall not:
(a) permit the REMIC to enter into, renew or extend any lease with
respect to any REO, if the lease by its terms will give rise to any income
that does not constitute Rents from Real Property;
(b) permit any amount to be received or accrued under any lease
other than amounts that will constitute Rents from Real Property;
(c) authorize or permit any construction on any REO, other than the
completion of a building or other improvement thereon, and then only if
more than ten percent of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(d) Directly Operate or allow any other Person to Directly Operate,
any REO on any date more than 90 days after its acquisition date, other
than through an "independent contractor," within the meaning of Section
856(e) of the Code;
unless, in any such case, the Servicer has requested and received an Opinion of
Counsel (at the Servicer's expense) to the effect that such action will not
cause such REO to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code at any time that it is held by the REMIC, in
which case the Servicer may take such actions as are specified in such Opinion
of Counsel.
3.2.3. REO Disposition. Within 30 days following an REO Disposition,
the Servicer shall provide to the Master Servicer a statement of accounting for
the related REO, including without limitation, (i) the loan number of the
related Mortgage Loan, (ii) the date such Mortgaged Property was acquired in
foreclosure or by deed in lieu of foreclosure, (iii) the date of REO
Disposition, (iv) the gross sales price and related selling and other expenses,
(v) accrued interest calculated from the date of acquisition to the disposition
date and (vi) such other information as the related trustee may reasonably
request.
Section 3.3 Prohibited Transactions and Activities
3.3.1. Mortgage Loan Disposition Restriction. The Servicer shall not
permit the sale, disposition or substitution for any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of the REMIC, (iii) the
termination of the REMIC in a "qualified liquidation" or "clean-up" call as
defined in Section 860F of the Code or (iv) a substitution of a Qualifying
Substitution Mortgage Loan as permitted under the REMIC Provisions), nor acquire
any assets for the REMIC, after the startup day of the REMIC, nor sell or
dispose of any investments in any of the accounts established by the Servicer
for the REMIC for gain, nor accept any contributions to the REMIC (other than
certain cash contributions permitted by Section 860G(c) of the Code) unless it
has received an Opinion of Counsel (at the expense of the Person requesting the
Servicer to take such action) to the effect that such disposition, acquisition,
substitution, or acceptance will not (a) affect adversely the status of the
REMIC as a REMIC or of the Certificates, other than the Certificates
representing the residual interest in the REMIC, as the regular interests
therein within the meaning of the REMIC Provisions, (b) affect the distribution
of interest or principal on the Certificates, (c) result in the encumbrance of
the assets transferred or assigned to the REMIC (except pursuant to the
provisions of this Agreement) or (d) cause the REMIC to be subject to a tax on
"prohibited transactions" or "prohibited contributions" pursuant to the REMIC
Provisions.
3.3.2. Personal Property. The Servicer shall not acquire any
personal property relating to any Mortgage Loan unless either:
(a) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Servicer; or
(b) the Servicer shall have requested and received an Opinion of
Counsel, at the expense of the Servicer, to the effect that the holding of
such personal property by the REMIC will not cause the imposition of a tax
on the REMIC under the REMIC Provisions or cause the REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
Section 3.4 Eligible Investments
3.4.1. Custodial Account. Funds in any custodial accounts
established by the Servicer and maintained in respect of the REMIC may be
invested and, if invested, shall be invested in Eligible Investments selected by
the Servicer which shall mature not later than the Business Day immediately
preceding the next Remittance Date, and any such Eligible Investment shall not
be sold or disposed of prior to its maturity. All such Eligible Investments
shall be made in the name of the REMIC or its nominee. All income and gain
realized from any such investment shall be, as long as the Servicer is servicing
the Mortgage Loans held by the REMIC, for the benefit of the Servicer as
additional compensation and shall be subject to its withdrawal or order from
time to time. The amount of any losses incurred in respect of any such
investments shall be deposited in the relevant account by the Servicer out of
its own funds immediately as realized. The foregoing requirements for deposit in
such account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in such
account and, as long as the Servicer is servicing the Mortgage Loans held by the
REMIC, payments in the nature of prepayment fees, late payment charges,
assumption fees or any similar fees customarily associated with the servicing
mortgage loans paid by any mortgagor need not be deposited by the Servicer in
such account and may be retained by the Servicer as additional servicing
compensation. If the Servicer deposits in such account any amount not required
to be deposited therein, it may at any time withdraw such amount, any provision
herein to the contrary notwithstanding.
3.4.2. Escrow Account. Subject to the terms of the related Mortgage
Notes and Security Instrument, and further subject to applicable law, any funds
in any escrow account shall be invested in Eligible Investments that mature
prior to the date on which payments have to be made out of the related escrow
account and any such Eligible Investment shall not be sold or disposed of prior
to its maturity; provided that, if any loss is incurred on any such investment,
the Servicer shall cover such loss by making a deposit into the appropriate
escrow account out of its own funds in the amount of such loss. Withdrawals from
any escrow account may be made (to the extent amounts have been escrowed for
such purpose and to the extent permitted by the related Security Instrument and
Mortgage Note) only (i) to effect timely payment of Escrow Items in connection
with the related Mortgage Loan, (ii) to reimburse the Master Servicer or
Servicer out of related collections for advances with respect to Escrow Items,
(iii) to refund to any mortgagors any sums determined to be overages, (iv) to
pay interest, if any, owed to mortgagors on such account to the extent required
by law, (v) for application to restoration or repair of the Mortgaged Property,
(vi) to clear and terminate the escrow account on the termination of this
Agreement or (vii) to remove funds placed in such escrow account in error. The
Servicer shall be entitled to all investment income on any escrow account not
required to be paid to mortgagors pursuant to the preceding sentence.
ARTICLE 4
Servicer Considerations
Section 4.1 Servicer Eligibility Standards
To service Mortgage Loans under this Agreement the Servicer must
satisfy the eligibility standards set forth in this Section 4.1 initially and at
all times thereafter.
4.1.1. Regulatory Approvals and Licensing. The Servicer must be:
(a) FNMA or FHLMC approved and in good standing;
(b) a HUD approved mortgagee in good standing;
(c) in compliance with all applicable capital requirements and other
requirements from time to time specified by any governmental agency or
quasi-governmental authority having jurisdiction over the Servicer; and
(d) properly licensed to service the Mortgage Loans in all relevant
jurisdictions where such licenses are required.
4.1.2. Net Worth and Portfolio Requirements.
(a) The Servicer must maintain a Tangible Net Worth of at least
$1,000,000.
(b) The Servicer must maintain an Adjusted Tangible Net Worth of at
least $1,000,000.
(c) The Servicer must maintain a servicing portfolio of at least
$1,000,000,000.
4.1.3. Auditor's Opinion; Other Annual Reports and Exchange Act
Reporting. (a) For so long as the Mortgage Loans are master serviced by the
Master Servicer, the Servicer shall provide, or cause to be provided in the case
of clause (iii), to the Master Servicer, no later than March 5 of each year or
if such day is not a Business Day, the next Business Day (with a 10 calendar day
cure period, but in no event later than March 15), commencing in March 2009, the
following:
(i) a report (in form and substance reasonably satisfactory to the
Master Servicer and the Depositor) regarding the Servicer's assessment of
compliance with the Servicing Criteria applicable to it during the
immediately preceding calendar year, as required under Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be addressed to the Master Servicer and the Depositor and signed by
an authorized officer of the Servicer, and shall address, at a minimum,
each of the Servicing Criteria applicable to the Servicer, as specified in
the table in Exhibit R to the Pooling and Servicing Agreement;
(ii) a report of a registered public accounting firm reasonably
acceptable to the Master Servicer and the Depositor 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 and the Exchange Act. If requested by the Master
Servicer or the Depositor, such report shall contain or be accompanied by
a consent of such accounting firm to inclusion or incorporation of such
report in the Depositor's Registration Statement on Form S-3 relating to
the Certificates and the Trust's Form 10-K; and
(iii) an assessment of compliance and accountants' attestation
described in paragraphs (i) and (ii) of this Section 4.1.3(a) with respect
to each Subservicer, and each Subcontractor determined by the Servicer
pursuant to Section 4.1.4(b) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 4.1.3(a)(iii) shall address each of the Relevant Servicing Criteria.
An assessment of compliance provided by a Subcontractor pursuant to Section
4.1.3(a)(iii) need not address any elements of the Servicing Criteria applicable
to it other than those specified by the Servicer pursuant to Section 4.1.4(b).
(c) On or before March 5 of each calendar year or if such day is not
a Business Day, the next Business Day (with a 10 calendar day cure period, but
in no event later than March 15), commencing in March 2009, the Servicer shall
deliver to the Master Servicer a certificate signed by an authorized officer of
the Servicer, for the benefit of the Master Servicer and its officers, directors
and affiliates in the event that the Master Servicer is required under the
Pooling and Servicing Agreement to file a Xxxxxxxx-Xxxxx Certification directly
with the Commission in connection with the securitization of the Mortgage Loans
(the "Transaction"), a certification in the form attached hereto as Exhibit B.
The foregoing certification shall also be given upon thirty (30)
days written request by the Master Servicer in connection with any additional
Xxxxxxxx-Xxxxx Certifications directly filed by the Master Servicer involving
the Mortgage Loans. The Servicer acknowledges that the Master Servicer may rely
on the certification provided by the Servicer pursuant to this Section 4.1.3(c)
in signing a Xxxxxxxx-Xxxxx Certification and filing such with the Commission.
The Master Servicer will not request delivery of a certification under this
Section 4.1.3(c) unless the Depositor is required under the Exchange Act to file
an annual report on Form 10-K with respect to the Transaction.
(d) On or before March 5 of each calendar year or if such day is not
a Business Day, the next Business Day (with a 10 calendar day cure period, but
in no event later than March 15), commencing in March 2009, the Servicer shall
(i) deliver to the Master Servicer a statement of compliance addressed to the
Master Servicer and signed by an authorized officer of the Servicer, to the
effect that (A) 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 officer's
supervision, and (B) to the best of such officers' 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 and (ii) cause each Subservicer to
deliver to the Master Servicer a statement of compliance addressed to the Master
Servicer and signed by an authorized officer of the Subservicer, to the effect
that (A) a review of the Subservicer's activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under the applicable agreement during such period has been made under such
officer's supervision, and (B) to the best of such officers' knowledge, based on
such review, the Subservicer has fulfilled all of its obligations under the
applicable 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.
(e) For so long as the Mortgage Loans are master serviced by the
Master Servicer, the Servicer shall provide to the Master Servicer, no later
than March 5 of each year or if such day is not a Business Day, the next
Business Day (with a 10 calendar day cure period, but in no event later than
March 15), commencing in March 2009, financial statements for the most recently
closed fiscal year, together with an unqualified opinion thereon of an
independent certified public accountant who is a member of the American
Institute of Certified Public Accountants, unless the Master Servicer, in its
reasonable discretion, decides to waive this requirement regarding
qualification.
(f) Within five (5) calendar days after a Distribution Date, the
Servicer shall provide to the Master Servicer, to the extent known, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Master Servicer and the Servicer, the form and substance of any Additional Form
10-D Disclosure applicable to the Servicer, as indicated in the table in Exhibit
S to the Pooling and Servicing Agreement. The Servicer acknowledges that the
performance by the Master Servicer of its duties under Section 3.12(a) of the
Pooling and Servicing Agreement relating to the timely preparation and filing of
Form 10-D is contingent upon the Servicer strictly observing all applicable
deadlines in the performance of its duties under this Section 4.1.3(f).
(g) No later than March 5 (with a 10 calendar day cure period, but
in no event later than March 15) of each year that the Trust is subject to the
Exchange Act reporting requirements, commencing in March 2009, the Servicer
shall provide to the Master Servicer, to the extent known, in XXXXX-compatible
form, or in such other form as otherwise agreed upon by the Master Servicer and
the Servicer, the form and substance of any Additional Form 10-K Disclosure
applicable to the Servicer, as indicated in the table in Exhibit T to the
Pooling and Servicing Agreement. The Servicer acknowledges that the performance
by the Master Servicer of its duties under Section 3.12(b) of the Pooling and
Servicing Agreement relating to the timely preparation and filing of Form 10-K
is contingent upon the Servicer strictly observing all applicable deadlines in
the performance of its duties under this Section 4.1.3(g).
(h) For so long as the Trust is subject to the Exchange Act
reporting requirements, no later than the end of business on the second Business
Day after the occurrence of a Reportable Event applicable to the Servicer, the
Servicer shall provide to the Master Servicer, to the extent known, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Master Servicer and the Servicer, the form and substance of any Form 8-K
Disclosure Information applicable to the Servicer, as indicated in the table in
Exhibit U to the Pooling and Servicing Agreement. The Servicer acknowledges that
the performance by the Master Servicer of its duties under Section 3.12(c) of
the Pooling and Servicing Agreement relating to the timely preparation and
filing of Form 8-K is contingent upon the Servicer strictly observing all
applicable deadlines in the performance of its duties under this Section
4.1.3(h).
(i) The Servicer shall indemnify the Master Servicer, each affiliate
of the Master Servicer, the Trust, each broker dealer acting as underwriter or
initial purchaser, each Person who controls any of such parties and the
Depositor (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor (each such
entity, a "Servicer Information Indemnified Party"), 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 Sections
4.1.3 and 4.1.4 hereof by or on behalf of the Servicer,
or provided under Sections 4.1.3 or 4.1.4 by or on
behalf of any Subservicer or 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;
(ii) any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report,
certification, accountants' letter or other material
when and as required under Sections 4.1.3 and 4.1.4,
including any failure by the Servicer to identify
pursuant to Section 4.1.4(b) any Subcontractor
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Servicer of a representation or
warranty set forth in Section 5.2.
In the case of any failure of performance described in clause (ii) of this
Section, the Servicer shall promptly reimburse the Master Servicer and the
Depositor, as applicable, 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, any Subservicer or
any Subcontractor. If the indemnification provided for herein is unavailable to
hold harmless any Servicer Information Indemnified Party, then the Servicer
agrees that it shall contribute to the amount paid or payable by such Servicer
Information Indemnified Party as a result of the losses, claims, damages or
liabilities of such Servicer Information Indemnified Party in such proportion as
is appropriate to reflect the relative fault of such Servicer Information
Indemnified Party on the one hand and the Servicer on the other in connection
with a breach of the Servicer's obligations under this Section 4.1.3 or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
4.1.4. Use of Subservicers and Subcontractors. The Servicer shall
not hire or otherwise utilize the services of any Subservicer to fulfill any of
the obligations of the Servicer as servicer under this Agreement unless the
Servicer complies with the provisions of paragraph (a) of this Section. The
Servicer shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Servicer as
servicer under this Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent
of the Master Servicer or the Depositor to the utilization of any Subservicer.
The Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Master Servicer and the Depositor to comply
with the provisions of this Section and with Sections 4.1.3 and 5.2 of this
Agreement to the same extent as if such Subservicer were the Servicer, and to
provide such information regarding the Subservicer as the Master Servicer or the
Depositor request for the purpose of complying with Item 1108 of Regulation AB,
including at a minimum, the information set forth in Exhibit C. The Servicer
shall be responsible for obtaining from each Subservicer and delivering to the
Master Servicer any servicer compliance statement required to be delivered by
such Subservicer under Section 4.1.3(d), any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 4.1.3(a)
and any certification required to be delivered to the Person that will be
responsible for signing the Xxxxxxxx-Xxxxx Certification under Section 4.1.3(c)
as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent
of the Master Servicer or any Depositor to the utilization of any Subcontractor.
The Servicer shall promptly upon request provide to the Master Servicer (or any
designee of Master Servicer) a written description (in form and substance
satisfactory to the Master Servicer and the Depositor) of the role and function
of each Subcontractor utilized by the Servicer or any Subservicer, specifying
(i) the identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB (as then interpreted by the Commission), and (iii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii) of
this paragraph. In the event of any disagreement among any of the parties hereto
regarding the application of the Commission's interpretation to a particular
Subcontractor, the determination of the Master Servicer shall be binding.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Master Servicer and the
Depositor to comply with the provisions of Section 4.1.3 (other than subsection
(d)) of this Agreement to the same extent as if such Subcontractor were the
Servicer. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Master Servicer any assessment of compliance
and attestation required to be delivered by such Subcontractor under Section
4.1.3, in each case as and when required to be delivered.
4.1.5. Servicing Experience. The Servicer shall satisfactorily
demonstrate to the Master Servicer, in the Master Servicer's reasonable
discretion, the following experience:
(a) that it has at least three (3) years of conventional mortgage
loan servicing experience;
(b) that it has a staff knowledgeable in servicing of Mortgage Loans
and the administration of REO; and
(c) that it has experience maintaining a servicing portfolio in
excess of $1 billion.
4.1.6. Material Changes. The Servicer shall promptly report to the
Master Servicer any change in its business operations, financial condition,
properties or assets since the date of the latest submitted financial statements
which could have a material adverse effect on the Servicer's ability to perform
its obligations hereunder. Events for which the Master Servicer must receive
notice include, but are not limited to, the following:
(a) any change in the Servicer's business address and/or telephone
number;
(b) any merger, consolidation, or significant reorganization;
(c) any changes in the Servicer's ownership whether by direct or
indirect means. Indirect means include any change in ownership of the
Servicer's parent;
(d) any change in the Servicer's corporate name;
(e) if the Servicer is a savings and loan association, any change in
the Servicer's charter from federal to state or vice versa;
(f) any decreases in capital, adverse alteration of debt/equity
ratios, or changes in management ordered or required by a regulatory
authority supervising or licensing the Servicer;
(g) any significant adverse change in the Servicer's financial
position;
(h) entry of any court judgment or regulatory order in which the
Servicer is or may be required to pay a claim or claims which, in the
Master Servicer's reasonable opinion, have a material adverse effect on
the Servicer's financial condition; and
(i) the Servicer admits to committing, or is found to have
committed, a material, in the Master Servicer's reasonable opinion,
violation of any law, regulation, or order.
Section 4.2 Errors and Omissions Insurance
4.2.1. E & O Requirement. A Servicer shall maintain, at all times
and at its own expense, an Errors and Omissions Policy in an amount and with an
insurer acceptable to FNMA or FHLMC.
4.2.2. E & O Scope. The Errors and Omissions Policy shall insure the
Servicer, its successors and assigns, against any losses resulting from
negligence, errors or omissions on the part of officers, employees or other
persons acting on behalf of the Servicer in the performance of its duties as a
Servicer pursuant to this Agreement.
4.2.3. E & O Policy Maintenance. The Servicer shall maintain in
effect the Errors and Omissions Policy at all times and the Errors and Omissions
Policy may not be canceled, permitted to lapse or otherwise terminated without
the acquisition of comparable coverage by the Servicer.
4.2.4. E & O Deductible. The terms of the Errors and Omissions
Policy shall provide for a deductible amount that is acceptable to FNMA or FHLMC
with respect to its approved mortgage loan servicers.
4.2.5. E & O Qualifications. The Errors and Omissions Policy shall
be obtained by the Servicer from an insurer which satisfies FNMA or FHLMC
standards in this regard.
Section 4.3 Fidelity Bond Coverage
4.3.1. Fidelity Bond Requirement. A Servicer must maintain, at all
times, at its own expense, a Fidelity Bond in an amount and with an insurer
acceptable to FNMA or FHLMC and having terms that are acceptable to FNMA or
FHLMC.
4.3.2. Fidelity Bond Coverage. The amount of Fidelity Bond coverage
shall be an amount acceptable to FNMA or FHLMC.
4.3.3. Fidelity Bond Scope. The coverage of the Fidelity Bond must
explicitly insure the Servicer, its successors and assigns, against any losses
resulting from dishonest, fraudulent or criminal acts on the part of Officers,
employees or other persons acting on behalf of the Servicer.
4.3.4. Fidelity Bond Maintenance. The Servicer must maintain in
effect the Fidelity Bond at all times and the Fidelity Bond may not be canceled,
permitted to lapse or otherwise terminated without thirty Business Days' prior
written notice by registered mail to the Master Servicer. Further, the Fidelity
Bond must provide that, or the insurer must state in writing to the Master
Servicer that, the Fidelity Bond shall not be cancelable without the giving of
notice as provided for in the prior sentence.
4.3.5. Fidelity Bond Deductible. The terms of the Fidelity Bond must
provide for a deductible amount that does not exceed FNMA or FHLMC requirements.
4.3.6. Fidelity Bond Rating Requirement. The Fidelity Bond must be
obtained from a company which satisfies FNMA or FHLMC standards in this regard.
Section 4.4 Servicer's Liability
4.4.1. Liability Exposure. Any and all losses not covered under the
Fidelity Bond or Errors and Omissions Policy, as a result of (i) the respective
deductible provisions thereof, (ii) the limits of coverage of the Fidelity Bond
or Errors and Omissions Policy or (iii) any claim denied which should have been
covered by the Fidelity Bond or the Errors and Omissions Policy, as the case may
be, according to the terms of this Agreement had the Fidelity Bond or Errors and
Omissions Policy been properly obtained and maintained and respective claim been
properly submitted for payment, shall be borne by the Servicer, where the
Servicer has acted in a manner in which the Servicer is not relieved from
liability as described in Section 4.4.2 hereof.
4.4.2. Scope of Liability. Neither the Servicer or any subservicer
appointed by it, nor any of their respective partners, directors, officers,
employees or agents, or its delegees pursuant to Section 11.2.1 hereof, shall be
under any liability to the Master Servicer, the Trustee or, if applicable, the
Trust Administrator for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer, any
subservicer or any of their respective partners, directors, officers, employees
or agents, or its delegees pursuant to Section 11.2.1 hereof, against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of his or its duties or by reason
of reckless disregard of his or its obligations and duties hereunder. The
Servicer, any subservicer and any of their respective partners, directors,
officers, employees or agents, or its delegees pursuant to Section 11.2.1
hereof, 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.
Section 4.5 Indemnification
4.5.1. Scope of Indemnity by Servicer. The Servicer hereby agrees to
indemnify and hold harmless (a) the Master Servicer, (b) the Trustee, (c) the
Trust Administrator (if applicable), (d) the Depositor and (e) the officers,
directors, employees, agents and Affiliates of any of the foregoing (any of the
foregoing hereinafter referred to as the "Indemnified Party"), from and against
any and all claims, losses, damages, liabilities, fines, settlements, awards,
offsets, defenses, counterclaims, actions, penalties, forfeitures, legal fees,
judgments and any other costs, fees and expenses (including, without limitation,
reasonable attorneys' fees and court costs) (any of the foregoing which satisfy
the criteria of this paragraph are collectively referred to as "Claims"), either
directly or indirectly arising out of, based upon, or relating to (i) a breach
by the Servicer, its officers, directors, employees, or agents, or its delegees
pursuant to Section 11.2.1 hereof, of any representation or warranty contained
herein, or any failure to disclose any matter that makes such representation and
warranty misleading or inaccurate, or any inaccuracy in material information
furnished by the Servicer regarding itself, (ii) a breach of any representation
or warranty made by any Indemnified Party in reliance upon any such
representation or warranty, failure to disclose, or inaccuracy in information
furnished by the Servicer regarding itself, (iii) any failure of the Servicer,
its officers, directors, employees, or agents, or its delegees pursuant to
Section 11.2.1 hereof, to perform any of its obligations under this Agreement in
a manner in which the Servicer is not relieved from liability as described in
Section 4.4.2 hereof, and (iv) any acts or omissions of the Servicer, its
officers, directors, employees, or agents, or its delegees pursuant to Section
11.2.1 hereof, in a manner in which the Servicer is not relieved from liability
as described in Section 4.4.2 hereof. Each Indemnified Party shall cooperate
with the Servicer in the defense of such Claims and shall not settle any such
Claim without the prior written consent of the Servicer.
4.5.2. Survival of Indemnity. This indemnification shall survive
purchase, transfer of any interest in a Mortgage Loan by any indemnified party,
the Liquidation of such Mortgage Loan, termination of the Servicer's servicing
rights with respect to such Mortgage Loan and termination or expiration of this
Agreement between the Servicer and the Master Servicer and its successors and
assigns.
Section 4.6 Servicer's Compensation; Indemnification
4.6.1. Servicing Fee Amount. In consideration of the services
rendered under this Agreement, absent default by the Servicer, the Servicer
shall on each Remittance Date be entitled to a monthly aggregate servicing
compensation (the "Monthly Servicing Compensation") for the preceding month
which shall equal the sum of (a) the Servicing Fee payable with respect to each
Mortgage Loan serviced during such month and (b) any interest earnings on each
Custodial P&I Account with respect to such month other than interest earnings
thereon which are payable to the Borrower pursuant to the Security Instrument or
applicable law, subject to any adjustment for Month End Interest as described in
Section 7.6.1. Absent default by the Servicer, the Servicer shall also be
entitled to retain in addition to the Monthly Servicing Compensation any late
charges, prepayment fees, penalty interest, assumption fees, modification fees
or deficiency recovery fees paid by the Borrower, any Liquidation Profits or any
other customary income or any payments of interest related to any Prepayment in
Full received by the Servicer prior to the Applicable Unscheduled Receipt
Period, which amounts are not required to be deposited into the Custodial P&I
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 herein.
4.6.2. Servicing Fee Source. The Servicing Fee for each Mortgage
Loan shall be payable solely from the interest portion of the related Monthly
Payment paid by the Borrower or other payment of interest paid with respect to
the Mortgage Loan, whether from the proceeds of foreclosure or any judgment,
writ of attachment or levy against the Borrower or his assets, or from funds
paid in connection with any prepayment in full or from Insurance Proceeds or
Liquidation Proceeds.
4.6.3. Indemnification of Servicer. The Master Servicer hereby
agrees to indemnify and hold harmless the Servicer, any Subservicer appointed by
it, any of their respective directors, officers, employees or agents, or its
delegees for any action taken by the Servicer, any Subservicer or any of their
respective directors, officers, employees or agents, or its delegees or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that the Servicer, any
Subservicer or any of their respective directors, officers, employees or agents,
or its delegees are not protected against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of his or its duties or by reason of reckless disregard of his or
its obligations and duties under this Agreement.
ARTICLE 5
Representations and Warranties
Section 5.1 General
5.1.1. Reliance. The Master Servicer relies upon the representations
and warranties contained in this Article 5 hereof, in the acceptance of the
Servicer. The representations, warranties and covenants contained herein shall
inure to the benefit of the Master Servicer, the Trustee and, if applicable, the
Trust Administrator.
5.1.2. Survival of Representations and Warranties. The
representations and warranties made herein shall survive termination of this
Agreement, and shall inure to the benefit of the Master Servicer, its respective
successors, Affiliates and assigns and each indemnified party under Section
4.5.1, its respective successors, Affiliates and assigns, in each case,
regardless of any review or investigation made by or on behalf of such parties
with respect to any Mortgage Loan.
5.1.3. Breach of Representation or Warranty. Upon breach of any
requirement or representation or warranty included in this Agreement relative to
any Mortgage Loan, the Servicer must:
(a) Give written notice within two (2) days to the Master Servicer
of the nature of the breach, the date on which the breach occurred or
began and the Servicer's plans, if any, for curing the breach;
(b) Effect a cure of the breach within 30 days after its occurrence
or onset and a reasonable extension will be granted if warranted and
necessary to fully cure the breach but in no event greater than 90 days;
and
(c) If no complete cure has been effected within such period the
Master Servicer shall take such action against the Servicer as it deems
necessary to protect the Trustee's interest in the Mortgage Loan.
5.1.4. Assignment of Representations and Warranties. The Servicer
agrees that each of the Trustee and, if applicable, Trust Administrator may, at
any time, assign the representations and warranties given by the Servicer as set
forth in this Article 5 which it then possesses, in whole or in part, or an
undivided interest therein, to one or more Persons.
Section 5.2 Servicer Representations and Warranties
The Servicer represents and warrants, as of the date of this
Agreement and, except as otherwise provided, throughout the term of this
Agreement, that the statements set forth below in this Section 5.2 are true and
accurate.
Relative to the Servicer:
-------------------------
5.2.1. Qualification of Servicer. The Servicer is duly incorporated,
validly existing and in good standing under the laws of the state of its
incorporation and is duly qualified to do business and is in good standing under
the laws of each jurisdiction that requires such qualification wherein it owns
or leases any material properties, or in which it conducts any material business
or in which the performance of its duties under this Agreement would require
such qualification, except where the failure to so qualify would not have a
material adverse effect on (a) the Servicer's performance of its obligations
under this Agreement, (b) the value or marketability of the Mortgage Loans, or
(c) the ability to foreclose on the related Mortgaged Properties.
5.2.2. Requisite. The Servicer has the corporate power and authority
to own its properties and conduct any and all business required or contemplated
by this Agreement and to perform the covenants and obligations to be performed
by it under this Agreement. The Servicer holds all material licenses,
certificates and permits from all governmental authorities necessary for
conducting its business as it is presently conducted.
5.2.3. No Conflicts. The execution and delivery of this Agreement
are within the corporate power of the Servicer and have been duly authorized by
all necessary actions on the part of the Servicer; neither the execution and
delivery of this Agreement by the Servicer, nor the consummation by the Servicer
of the transactions herein contemplated, nor compliance with the provisions
hereof by the Servicer, will (i) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the articles of
incorporation or bylaws of the Servicer or any law, governmental rule or
regulation, or any judgment, decree or order binding on the Servicer or any of
its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which it is a party or by which it is
bound or (ii) result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument.
5.2.4. Enforceable Agreement. This Agreement, when duly executed and
delivered by the Servicer, will constitute a legal, valid and binding agreement
of the Servicer, enforceable in accordance with its terms, subject, as to
enforcement or remedies, to applicable bankruptcy, reorganization, insolvency or
other similar laws affecting creditors' rights generally from time to time in
effect, and to general principles of equity.
5.2.5. No Consents. No consent, approval, order or authorization of
any governmental authority or registration, qualification or declaration with
any such authority is required in order for the Servicer to perform its
obligations under this Agreement.
5.2.6. Agency Approval. The Servicer has been approved by FNMA or
FHLMC and will remain approved as an "eligible seller/servicer" of conventional,
residential mortgage loans as provided in FNMA or FHLMC guidelines and in good
standing. The Servicer has not received any notification from FNMA or FHLMC that
the Servicer is not in compliance with the requirements of the approved
seller/servicer status or that such agencies have threatened the servicer with
revocation of its approved seller/servicer status.
5.2.7. Financial Condition. The Servicer is not, and, with passage
of time, does not expect to become, insolvent or bankrupt. Except as disclosed
in the Prospectus, there is no material risk that the Servicer's financial
condition could affect one or more aspects of the performance by the Servicer of
its servicing obligations under this Agreement in a manner that could have a
material impact on the performance of the Mortgage Loans or the Certificates.
The Servicer shall promptly notify the Master Servicer of any material adverse
change of its financial condition.
5.2.8. Servicing Practices. The servicing practices used by the
Servicer under this Agreement have been and are in all respects in compliance
with all federal, state and local laws, rules, regulations and requirements in
connection therewith and are in accordance with Prudent Servicing Practices.
5.2.9. No Impairment. There is no action, suit, proceeding or
investigation pending or, to the best of the Servicer's knowledge after due
inquiry, threatened, against the Servicer which, either in any one instance or
in the aggregate, may result in any material adverse change in business
operations, financial condition, properties or assets of the Servicer, or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Servicer, or which if adversely determined would affect the validity
of this Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer to perform under the terms of this
Agreement.
5.2.10. No Inquiries. The Servicer has not been the subject of an
audit by any of the Master Servicer, FHA, HUD, FDIC, FNMA, FHLMC, GNMA or any
Primary Mortgage Insurer, which audit included material allegations of failure
to comply with applicable loan origination, servicing or claims procedures, or
resulted in a request for repurchase of Mortgage Loans or indemnification in
connection with the Mortgage Loans.
5.2.11. No Performance Triggering Event. Except as disclosed in the
Prospectus, 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 securitization due to any act or failure to act of the Servicer under
such securitization.
5.2.12. No Termination. Except as disclosed in the Prospectus, 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.
5.2.13. No Material Noncompliance. Except as disclosed in the
Prospectus or otherwise in writing provided by the Servicer to the Master
Servicer, there has been no material noncompliance with the applicable servicing
criteria with respect to securitizations of residential mortgage loans involving
the Servicer as a servicer within the past three (3) years.
5.2.14. Servicing Policies and Procedures. Except as disclosed in
the Prospectus, 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 date of this Agreement.
5.2.15. No Affiliations. Except as disclosed in the Prospectus,
there are no affiliations, relationships or transactions relating to the
Servicer and any party identified in Item 1119 of Regulation AB of the type
described therein.
5.2.16. Legal or Governmental Proceedings. Except as disclosed in
the Prospectus, there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Servicer or any Subservicer that would
be material to Certificateholders.
Relative to the Mortgage Loans:
-------------------------------
5.2.17. Custodial and Escrow Accounts Current. All Custodial P&I
Accounts, Custodial T&I Accounts, Custodial Buydown Accounts and Escrow Funds
are maintained by the Servicer and have been maintained in accordance with
applicable law and the terms of the Mortgage Loans. The Escrow Items required by
the Mortgages which have been paid to the Servicer for the account of the
Borrower are on deposit in the appropriate Custodial Account. All funds received
by the Servicer in connection with the Mortgage Loans, including, without
limitation, foreclosure proceeds, Insurance Proceeds, condemnation proceeds and
principal reductions, have promptly been deposited in the appropriate Custodial
Account, and all such funds have been applied to reduce the principal balance of
the Mortgage Loans in question, or for reimbursement of repairs to the Mortgaged
Property or as otherwise required by applicable law.
5.2.18. Insurance Maintenance. Pursuant to the terms of the related
Security Instrument, all buildings or other improvements upon the related
Mortgaged Property are insured by an insurance policy or policies meeting the
requirements of Articles 15 and 16 hereof. The related Security Instrument
obligates the Borrower thereunder to maintain the hazard insurance policy at the
Borrower's cost and expense and, upon the Borrower's failure to do so,
authorizes the Mortgagee under the related Security Instrument to obtain and
maintain such insurance at the Borrower's cost and expense and to seek
reimbursement therefor from the Borrower. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Trustee. The
Servicer and the Borrower have not engaged in any act or omission that would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either. The Mortgage Loan
Documents permit the maintenance of an escrow account to pay the premiums for
the above mentioned insurance, and the requirement for such escrows has not been
waived, unless otherwise required by applicable state law.
ARTICLE 6
Custodial Accounting
Section 6.1 In General
6.1.1. Custodial Account Establishment. The Servicer must establish
appropriate custodial accounts for the benefit of the Trustee, its successors
and assigns for the deposit of funds collected in connection with such Mortgage
Loans. All custodial accounts and related records must be maintained in
accordance with sound and controlled accounting practices. The custodial
accounts maintained pursuant to this Agreement may be custodial accounts for one
or more other series of mortgage pass-through certificates issued by Xxxxx Fargo
Asset Securities Corporation; provided, however, that (a) the trustee for such
other series under the related pooling and servicing agreement(s) is the Trustee
and (b) the master servicer for such other series under the related pooling and
servicing agreement(s) is the Master Servicer.
6.1.2. Custodial Account Separateness. (a) At least one custodial
account for principal and interest (i.e., a Custodial P&I Account), one
custodial account for taxes and insurance (i.e., a Custodial T&I Account), one
custodial account for Subsidy Funds, if applicable (i.e., a Custodial Subsidy
Account), one custodial account for PITI Funds, if applicable (i.e., a Custodial
PITI Account) and one custodial account for Buydown Funds, if applicable (i.e.,
a Custodial Buydown Account), shall be established and maintained for the
Mortgage Loans. Except as specified in 6.1.2(b), without the written consent of
the Master Servicer, funds in these accounts may not be commingled with other
funds held by the Servicer. Each Custodial P&I Account shall be established as
an Eligible Account ("Eligible Custodial P&I Account").
(b) Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer may employ the Custodial T&I Account as the
Custodial Subsidy Account, the Custodial PITI Account and/or the Custodial
Buydown Account to the extent that the Servicer can separately identify
any Subsidy Funds, PITI Funds or Buydown Funds, as applicable, deposited
therein.
6.1.3. Custodial Account Maintenance. The Servicer must ensure that
each Custodial P&I Account, Custodial T&I Account, Custodial Subsidy Account,
Custodial PITI Account and Custodial Buydown Account meets the following
guidelines:
(a) the accounts must be Eligible Accounts;
(b) the name of each Custodial P&I Account, Custodial T&I Account
and Custodial Buydown Account shall include a reference to the name of the
Trustee and the designation of the series of Mortgage Pass-Through
Certificates or, where such accounts are accounts maintained for multiple
series of mortgage pass-through certificates as described in Section
6.1.1, a reference to "HSBC Bank USA, National Association, as trustee for
Xxxxx Fargo Asset Securities Corporation, Mortgage Pass-Through
Certificates;"
(c) the Servicer must transfer all funds on hand relating to such
Mortgage Loans, Monthly Payments due on or after the related Cut-Off Date
and any principal prepayments received after the related Cut-Off Date,
into the appropriate custodial accounts meeting the requirements of
Sections 6.1.1 and 6.1.2 hereof;
(d) beginning with any payment due on or after the related Cut-Off
Date, all collections on the Mortgage Loans must be credited to the
appropriate custodial account no later than the second Business Day
following receipt;
(e) (i) the Servicer shall not permit the balance of any Custodial
P&I Account to exceed the Threshold Amount or include any amounts then
required to be remitted to the Certificate Account pursuant to Section
18.3.1, (ii) in the event the Servicer collects amounts in excess of the
Threshold Amount prior to the next scheduled transfer of funds to the
respective Certificate Account, the Servicer must transfer the excess
funds directly to the related Certificate Account by wire before the close
of business on any day on which the amount on deposit in such account
exceeds the Threshold Amount and (iii) in the event that the Servicer
fails to transfer the funds in excess of the Threshold Amount to the
related Certificate Account or to remit to the Certificate Account the
Monthly Remittance on the Remittance Date pursuant to Section 18.3.1, the
Master Servicer is authorized to debit such Custodial P&I Account and
transfer such amounts to the related Certificate Account;
(f) (i) the Servicer must file with the Master Servicer the
appropriate ACH Debit Form for each Custodial P&I Account; (ii) the Master
Servicer may monitor the principal balance of each Custodial P&I Account
and may issue an ACH debit for amounts on deposit in any such account in
excess of the Threshold Amount or otherwise in violation of Section
6.1.3(e); (iii) such amounts will immediately be deposited into the
appropriate Certificate Account; and (iv) the ability of the Master
Servicer to withdraw and remit such funds to the appropriate Certificate
Account does not relieve the Servicer of its obligations to remit such
funds to the related Certificate Account;
(g) upon the establishment of a Custodial P&I Account, Custodial T&I
Account or Custodial Buydown Account, the Servicer shall promptly advise
the Master Servicer in writing of, or of any change in, the name and
address of the depository, the account number and the title of the
account; and
(h) (i) establishment and maintenance of the Custodial P&I Account,
Custodial T&I Account and Custodial Buydown Account will be an expense of
the Servicer; (ii) such custodial accounts may be interest-bearing
accounts provided that such accounts comply with all local, state and
federal laws and regulations governing interest-bearing accounts and, in
the case of a Custodial T&I Account or Custodial Buydown Account,
governing Borrower escrow accounts; and (iii) the Servicer must ensure
that all interest credited to any custodial account that is not due the
Borrower is removed by the Servicer within 30 days after receipt of such
interest.
6.1.4. Escrow Investment. If the Servicer elects or is required by
law to deposit the Borrower's Escrow Funds into an interest-bearing custodial
account, the Servicer shall either (a) deposit such funds into an account which
permits withdrawal on demand so as to pay Escrow Items as they come due, or (b)
invest such funds in an Eligible Account so that adequate funds mature the
Business Day prior to the date payment is due for each Escrow Item.
6.1.5. Clearing Account. If the Servicer finds it necessary to use a
clearing account, the following guidelines must be followed:
(a) the titles of such accounts must reflect that they are custodial
in nature, and the depository in which the accounts are maintained must be
informed in writing that the accounts are custodial accounts;
(b) a check drawn on or funds transferred from a Custodial P&I
Account or Custodial T&I Account must be deposited to a disbursement
clearing account before or at the same time as any checks on the clearing
account are issued;
(c) a single clearing account must not be utilized both as a
collection and disbursement clearing account;
(d) the accounts must be held at depository institutions in which
accounts are insured by the FDIC, through either the BIF or SAIF;
(e) the Servicer must maintain adequate records and audit trails to
support all debits and credits of each Borrower's payment records and
accounts; and
(f) collections deposited to a depository clearing account must be
credited to the appropriate custodial account no later than one Business
Day following receipt by the Servicer.
6.1.6. Custodial Buydown Account. The Servicer must establish a
separate custodial account to hold Buydown Funds on Mortgage Loans being
serviced for the Trustee, its successors and assigns. These accounts must be
clearly marked to indicate that the Servicer is a custodian for Buydown Funds
being held for the Trustee, its successors and assigns.
6.1.7. Certificate Account. The Master Servicer shall establish a
segregated Certificate Account in accordance with Section 3.01 of the Pooling
and Servicing Agreement.
6.1.8. Custodial Subsidy Account. The Servicer must establish a
separate custodial account to hold Subsidy Funds on Mortgage Loans being
serviced for the Trustee, its successors and assigns. These accounts must be
clearly marked to indicate that the Servicer is a custodian for Subsidy Funds
being held for the Trustee, its successors and assigns.
6.1.9. Custodial PITI Account. The Servicer must establish a
separate custodial account to hold PITI Funds on Mortgage Loans being serviced
for the Trustee, its successors and assigns. These accounts must be clearly
marked to indicate that the Servicer is a custodian for PITI Funds being held
for the Trustee, its successors and assigns.
Section 6.2 Custodial P&I Account
6.2.1. Mandatory Deposits. The following funds must be deposited
into each related Custodial P&I Account within two Business Days after the
Servicer's receipt of such amounts, or in the case of clauses (d) and (e)
hereof, on the Remittance Date or, in the case of clause (g) hereof, on the
Business Day after the Servicer's receipt of the Borrower's required monthly
payment under the related subsidy agreement:
(a) Principal collections from related Mortgage Loans (including
Prepayments in Full and Curtailments), together with Month End Interest,
if applicable;
(b) Interest collections from related Mortgage Loans (net of
Servicing Fees or other compensation of the Servicer as set forth in
Section 4.6.1);
(c) Liquidation Proceeds and Insurance Proceeds from related
Mortgage Loans other than proceeds held in an escrow account and applied
to the restoration and repair of the related Mortgaged Property;
(d) related P&I Advances;
(e) any related PMI Advances;
(f) the proceeds of any purchase, or substitution under a purchase
agreement, of a related Mortgage Loan by the Servicer or a Representing
Party, or sale of an REO;
(g) an amount from the Custodial Subsidy Account that when added to
the Borrower's payment will equal the full monthly amount due under the
related Mortgage Note;
(h) any amounts received pursuant to Section 15.7; and
(i) an amount, if any, representing principal and/or interest with
respect to a PITI Loan.
6.2.2. Optional Deposits. The following funds may, but are not
required to, be deposited into each related Custodial P&I Account:
(a) late charges;
(b) prepayment fees;
(c) penalty interest;
(d) assumption fees;
(e) Liquidation Profits; and
(f) unapplied funds if the Borrower that remitted such funds is not
required to maintain Escrow Funds.
The Servicer shall maintain separate accounting for each of the foregoing types
of funds. Provided that the Servicer is not in default of its obligations
hereunder, the Servicer may retain any late charges, prepayment fees, penalty
interest, assumption fees and Liquidation Profits as additional servicing
compensation.
6.2.3. Permissible Withdrawals. The Servicer may make withdrawals
from each related Custodial P&I Account solely for the following:
(a) remittances to the related Certificate Account;
(b) reimbursement to itself for advances or for Capitalized Advance
Amounts which have been recovered by subsequent collections including late
payments, Liquidation Proceeds or Insurance Proceeds, to the extent funds
on deposit recovered by such subsequent collections relate to the Mortgage
Loans as to which such advances or Capitalized Advance Amounts were made;
(c) interest earnings on deposits to the related Custodial P&I
Account, but only to the extent that such interest has been credited;
(d) removal of amounts deposited in error;
(e) removal of charges or other such amounts deposited on a
temporary basis in the account;
(f) removal of Servicing Fees to the extent deposited therein; and
(g) termination of the account.
6.2.4. Account Beneficiary. Each Custodial P&I Account (other than
any Eligible Custodial P&I Account) must be titled to show the respective
interests of the Servicer as trustee and of the Master Servicer as beneficiary.
6.2.5. Use of Accounts. The Servicer shall not use the Custodial P&I
Account as a collection clearing account.
Section 6.3 Custodial T&I Account
6.3.1. Mandatory Deposits. The following funds must be deposited
into each respective Custodial T&I Account:
(a) related Borrowers' Escrow Funds;
(b) related T&I Advances;
(c) the remaining balance of Title Insurance loss drafts;
(d) rent receipts to offset any related T&I Advances by the
Servicer;
(e) unapplied funds;
(f) Liquidation Proceeds from a related Mortgage Loan that offset a
deficit balance in the related Borrower's Escrow Funds; and
(g) amounts, if any, of PITI Funds representing taxes and insurance
premiums due.
6.3.2. Permissible Withdrawals. With respect to each related
Borrower, the Servicer may make withdrawals from each respective Custodial T&I
Account to the extent of the balance of such related Borrower's Escrow Funds for
the following:
(a) timely payment of such related Borrower's taxes and insurance
premiums;
(b) refunds to such related Borrower of excess Escrow Funds
collected from such Borrower;
(c) recovering T&I Advances made with respect to such related
Borrower by the Servicer;
(d) payment of interest, if required, to such related Borrower on
his Escrow Funds;
(e) removal of any deposits made in error;
(f) to transfer payment on account of Buydown Funds and/or Subsidy
Funds to the Custodial P&I Account; and
(g) termination of the account.
6.3.3. Account Requirements. Each Custodial T&I Account is to be
designated in the name of the Servicer acting as an agent for the individual
related Borrowers to make such Escrow Item payments in order to show that the
account is custodial in nature. The Servicer is required to keep records
identifying each Borrower's payment deposited into the account.
6.3.4. Account Balance. The Servicer must never allow any Custodial
T&I Account to become overdrawn as to any individual related Borrower. If there
are insufficient funds in the account, the Servicer must advance its own funds
to cure the overdraft.
Section 6.4 Eligible Account Investments
6.4.1. Eligible Investments Permitted .Unless prevented or
restricted by written notice of the Master Servicer pursuant to Section 6.4.5
hereof, the Servicer may, from time to time, withdraw funds from a Custodial P&I
Account, Custodial Subsidy Account, Custodial PITI Account or Custodial Buydown
Account, and immediately invest such funds in Eligible Investments in accordance
with this Agreement. Upon the maturity of such Eligible Investments, such funds
shall be redeposited into the Eligible Account from which they were drawn or
into the Certificate Account.
6.4.2. Eligible Investment Restrictions. No Eligible Investment
shall be sold or disposed of at a gain prior to maturity unless the Servicer has
obtained the consent of the Master Servicer.
6.4.3. Eligible Investment Income. All income (other than any gain
from a sale or disposition of the type referred to in Section 6.4.2 hereof)
realized from any such Eligible Investment shall be for the benefit of the
Servicer as additional servicing compensation.
6.4.4. Eligible Investment Losses. The amount of any losses incurred
in respect of any investments permitted under this Section 6.4 shall be
deposited in the Certificate Account by the Servicer out of its own funds
immediately as realized. The Master Servicer may, in its reasonable discretion,
from time to time, require the Servicer to provide a reasonable amount of
security to cover the risk of such investment losses. To the extent that the
Servicer shall not immediately deposit the amount of such losses in the
Certificate Account, the Master Servicer may immediately act against such
security as well as pursue all other remedies permitted by law.
6.4.5. Eligible Investments Reports. The Servicer shall, at any time
provide such information and reports regarding its Eligible Investments under
this Agreement as the Master Servicer may request.
6.4.6. Inter-Company Uses of Funds .Notwithstanding anything herein
to the contrary, and subject to the proviso set forth below, the Servicer is
permitted to withdraw funds from a Custodial P & I Account and commingle such
funds with the general assets of the Servicer to be used for general corporate
purposes until such time as such funds are required to be remitted to the
related Certificate Account; provided, however, that the provisions of this
Section 6.4.6 shall be applicable only for so long as (i) a master guarantee
substantially in the form of Exhibit A attached hereto has been issued by Xxxxx
Fargo & Company for the benefit of the certificateholders of the Mortgage
Pass-Through Certificates and is currently in force and (ii) the short-term debt
or long-term debt of Xxxxx Fargo & Company is rated by each of the Rating
Agencies in its highest short-term or highest long-term rating category or in
such lower rating category as would not result in a downgrading or withdrawing
of the rating then assigned to any of the Mortgage Pass-Through Certificates by
either Rating Agency or result in any of such rated Mortgage Pass-Through
Certificates being placed on credit review status by either Rating Agency.
ARTICLE 7
Mortgage Loan Accounting
Section 7.1 In General
7.1.1. Mortgage Loan Accounting Practices. The Servicer shall
administer the application and accounting of payments made on the Mortgage Loans
in accordance with the provisions of this Agreement.
7.1.2. Record Keeping. The Servicer must maintain complete and
accurate records of all transactions affecting any Mortgage Loan. Each Mortgage
Loan must be clearly marked to indicate that it is being serviced for the
Trustee, its successors and assigns.
7.1.3. Record Review. The Master Servicer and its designee have the
right to:
(a) conduct reviews and audits of the Servicer's records and
operating procedures during any Business Day; and
(b) examine the Servicer's financial records, the Borrowers' Escrow
Funds records and any and all other relevant documents and materials,
whether held by the Servicer or by another on behalf of the Servicer, to
ensure compliance with terms and conditions of this Agreement and the
Master Servicer's standards.
Section 7.2 Mortgage Loan Records
7.2.1. Account Records. Permanent Mortgage Loan account records must
be maintained by the Servicer for each Mortgage Loan. Each account record must
be identifiable by the Servicer Loan Number.
7.2.2. Account Record Information. The Servicer shall maintain the
following information for each Mortgage Loan in a readily accessible form:
(a) the Master Servicer Loan Number;
(b) the current Unpaid Principal Balance;
(c) the date of receipt, amount of payment and distribution of such
payment for each Monthly Payment received with respect to such Mortgage
Loan as to each related Due Date;
(d) for ARM Loans, the current Mortgage Interest Rate, all
limitations contained in the Mortgage Note with respect to periodic
adjustments in the Mortgage Interest Rate, the scheduled Interest
Adjustment Dates, Payment Adjustment Dates, the Gross Margin and the
Index;
(e) other transactions affecting the amounts due from or payable to
the related Borrower;
(f) the current outstanding balances of principal and interest
deposits, advances, taxes and insurance deposits and unapplied payments
with respect to such Mortgage Loan;
(g) any overdraft of the Borrower's Escrow Funds;
(h) any servicing reports or loan histories; and
(i) any other information customarily maintained by a mortgage loan
servicer of one to four family residential mortgages.
7.2.3. Accounting Practice. Except as otherwise provided herein, all
Mortgage Loan account records must be maintained according to (a) the Uniform
Single Attestation Program for Mortgage Bankers and (b) where applicable, sound
and generally accepted accounting practices.
7.2.4. Access to Certain Documentation and Information Regarding the
Mortgage Loans At the request of the Master Servicer, the Servicer shall provide
to the Master Servicer, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of the Office of Thrift Supervision and the
examiners of the FDIC, as appropriate, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision or the FDIC, such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. The Servicer shall permit such representatives to
photocopy any such documentation and shall provide equipment for that purpose at
a charge reasonably approximating the cost of such photocopying to the Servicer.
Section 7.3 Accounting Procedures
7.3.1. Principal and Interest Computation. All Mortgage Loans must
amortize with interest calculated and paid in arrears. Under this method, the
interest due from a Borrower on a Due Date is calculated based on (a) the Unpaid
Principal Balance of the related Mortgage Loan prior to application of the
principal portion of the related current Monthly Payment, (b) thirty days
interest at the related Mortgage Interest Rate and (c) adjusted as herein
provided for the effects of Curtailments, Partial Liquidation Proceeds,
Prepayments in Full and Liquidations. The calculated interest portion is then
subtracted from the related Monthly Payment to obtain the principal portion. The
principal portion is then applied to the Unpaid Principal Balance of the related
Mortgage Loan. The amount to be applied to interest for a multiple installment
must be calculated using the Unpaid Principal Balance of the related Mortgage
Loan remaining after the previous interest calculation and principal
application.
7.3.2. Amortization Requirement. The amortization of each Mortgage
Loan must reduce to zero, or as to Balloon Loans, the respective Balloon Amount,
at the end of the Mortgage Loan term through the application of regular monthly
payments.
7.3.3. Negative Amortization. To the extent any Mortgage Loan
provides for negative amortization, such as a GPM or GPARM Loan, the Servicer
must assure that the Unpaid Principal Balance of such Mortgage Loan never
exceeds the related Maximum Negative Amortization Amount, and that the related
Monthly Payment is recast as provided for in the Mortgage Note such that the
balance fully amortizes within the remaining term of such Mortgage Loan.
7.3.4. Interest Calculations. Monthly interest calculations for
periods of a full month must be based on a 30-day month and a 360-day year.
Factors used for such calculations should be carried to a minimum of three
decimal places. The dollar amount of any interest payment shall be carried out
to a minimum of three decimal places. Interest calculations for a period of less
than a full month must be based on a 365-day year.
7.3.5. Buydown Loans. The Servicer must amortize a Mortgage Loan for
which Buydown Funds are applied at the Mortgage Interest Rate, not at the
buy-down rate, in order to ensure that payments are collected to amortize
properly the Mortgage Loan.
Section 7.4 Application Procedure
7.4.1. Application Priority. A payment from a Borrower will normally
consist of interest, principal, deposits for insurance and taxes and late
charges, if applicable. Payments received from Borrowers must be applied in the
order provided for in the related Security Instrument. To the extent not
inconsistent with the related Security Instrument, such payments shall be
applied in the following order:
(a) required monthly interest;
(b) required monthly principal;
(c) deposits for taxes and insurance;
(d) prepayment charges; and
(e) any fees which may be retained by the Servicer, including late
charges, returned check fees, and assumption fees.
7.4.2. [Reserved].
7.4.3. Advance Payments. Payments made by the Borrower to satisfy
future installments must be accounted for as prepaid installments of principal
and interest. The Servicer should contact the Borrower if there is a question
about the Borrower's intention in making any unscheduled payment.
Section 7.5 Curtailments
7.5.1. Curtailment Amount. The Servicer may accept Curtailments at
any time. If a Mortgage Loan is delinquent, funds received must first be applied
to bring the Mortgage Loan current. If there are excess funds after the
application of amounts received from the Borrower to pay the related Monthly
Payment, the excess funds represent a Curtailment and may be applied as a
partial principal prepayment.
7.5.2. Curtailment Application. If a Curtailment is received on or
after the Due Date, the Servicer may either (i) retroactively apply the
Curtailment to the Scheduled Principal Balance of the related Mortgage Loan as
of the Due Date, or (ii) to the extent permitted by law and the Mortgage Loan,
apply such Curtailment at the end of the current period. The interest portion of
the next installment due is then calculated based on the Unpaid Principal
Balance of the related Mortgage Loan after application of the Curtailment.
7.5.3. Effect of Curtailment. A Curtailment may not be used to
reduce the related Mortgage Interest Rate for any Mortgage Loan or to postpone
the Due Date of any payment.
7.5.4. Curtailment Transmission. Each Curtailment must be deposited
into the related Custodial P&I Account within two Business Days after receipt
and must be remitted no later than the regularly scheduled Monthly Remittance to
the related Certificate Account.
Section 7.6 Liquidations
7.6.1. Month End Interest. If a Prepayment in Full of a Mortgage
Loan occurs, such prepayment is received by the Servicer after the Applicable
Unscheduled Receipt Period ending in the month in which such prepayment occurs,
and the Servicer does not receive a full 30 days of interest (calculated on a
30-day month, 360-day year basis) on the prepaid amount for the month in which
such Prepayment in Full occurs, the Servicer must pay the Month End Interest on
all such Mortgage Loans so prepaid in full on the Remittance Date in the month
following the month of such prepayment. Any Month End Interest Shortfall for any
month shall not be recoverable from the Servicer or any other source in the
future. The payment of Month End Interest by the Servicer, as provided for
above, shall not be an "advance" and shall not be reimbursable from the proceeds
of any Mortgage Loan.
7.6.2. Liquidation Reports. The Servicer will report information
with respect to Liquidations in the monthly reports delivered to the Master
Servicer by the eighteenth calendar day of each succeeding month.
7.6.3. Deposit of Funds. Within one day after the Liquidation of a
Mortgage Loan, the Servicer shall deposit the related Liquidation Proceeds
together with the related Month End Interest into the related Custodial P&I
Account.
7.6.4. Document Request. After any Liquidation, the Servicer must
complete and send a Request for Release of Documents to the Custodian to ensure
the release of documents within the period required by applicable state law.
Section 7.7 Realized Losses
7.7.1. Liquidation Realized Loss Determination. With respect to the
calculation of a Realized Loss suffered on the related Mortgage Loan on a
Liquidation of such Mortgage Loan, the amount of such Realized Loss is equal to
(a) the sum of:
(i) Unpaid Principal Balance;
(ii) unpaid interest accrued at the related Mortgage Interest Rate;
(iii) attorneys' fees and other foreclosure and sale expenses;
(iv) unpaid taxes;
(v) unpaid property maintenance expenses;
(vi) unpaid insurance premiums; and
(vii) hazard loss expenses;
less the sum of:
(i) the balance of Escrow Funds, if any;
(ii) any refund of any Hazard Insurance premium;
(iii) rental income receipts;
(iv) Insurance Proceeds or PMI Advances;
(v) cash proceeds of any foreclosure sale;
(vi) proceeds from sale of a REO; and
(vii) any amounts received pursuant to bankruptcy or insolvency
proceedings.
7.7.2. Bankruptcy Realized Loss Determination. With respect to the
calculation of a Realized Loss on a Mortgage Loan subject to a Deficient
Valuation, the amount of the Realized Loss is the difference between the Unpaid
Principal Balance of the related Mortgage Loan immediately prior to the
Deficient Valuation and the Unpaid Principal Balance as reduced by the Deficient
Valuation.
7.7.3. Servicer Modification Realized Loss Determination. With
respect to the calculation of a Realized Loss on a Mortgage Loan subject to a
Servicer Modification, the amount of the Realized Loss is the difference between
the Unpaid Principal Balance of the related Mortgage Loan immediately prior to
the Servicer Modification and the Unpaid Principal Balance as reduced by the
Servicer Modification and any unpaid interest forgiven by the Servicer as a
result of a Servicer Modification.
7.7.4. Reporting Requirement. As to any defaulted Mortgage Loan, the
Servicer must account to, and report in writing to, the Master Servicer as to
any Realized Loss (or gain) upon the Liquidation, Deficient Valuation or
Servicer Modification in respect of such Mortgage Loan.
7.7.5. Servicer's Liability. Except in the case of a purchase by the
Servicer of a Mortgage Loan from the Trustee thereof due to a breach of a
representation or warranty by the Servicer or failure to perform the servicing
procedures as set forth in this Agreement, the Servicer is not liable for any
Realized Loss on any Mortgage Loan.
ARTICLE 8
ARM Loans
Section 8.1 ARM Loan Servicing
8.1.1. In General. It is the Servicer's responsibility to enforce
each ARM Loan (and any other Mortgage Loan) according to its terms and in
conformity with all applicable law. The Servicer's records must, at all times,
reflect the then-current Mortgage Interest Rate and Monthly Payment for such ARM
Loan and the Servicer must timely notify the Borrower of any changes to the
Mortgage Interest Rate and/or the Borrower's Monthly Payment.
8.1.2. Servicer's Liability. If the Servicer fails to make either a
timely or accurate adjustment to the Mortgage Interest Rate or Monthly Payment
for an ARM Loan or to notify the Borrower of such adjustments, and subsequently
receives a short Monthly Payment, the Servicer must pay from its own funds any
shortage until the Servicer has made the necessary corrections in conformance
with applicable law so as to secure the correct Monthly Payment from the
Borrower. In the event that such error results in the Borrower making a Monthly
Payment in excess of the amount which he should have made if such adjustment
were properly calculated, then the Servicer shall promptly (a) make the required
adjustment to the Borrower's Monthly Payment and Mortgage Interest Rate so that
they reflect the amounts as properly calculated as of the related Payment
Adjustment Date, (b) refund to the Borrower the amount of any such excess
received by the Servicer from the related Payment Adjustment Date and (c) deduct
from the respective Custodial P&I Account or the Certificate Account the amount
of such refund to reimburse the Servicer for making such refund. Any amounts
paid by the Servicer pursuant to this Section shall not be an advance and shall
not be reimbursable from the proceeds of any Mortgage Loan.
8.1.3. Adjustment Reports. All Mortgage Interest Rate and Monthly
Payment adjustments must be reported to the Master Servicer in a ARM Loan change
report.
8.1.4. Substitute Index. If the Index required to be used to
determine the Mortgage Interest Rate for a Mortgage Loan is not available on an
Interest Adjustment Date, the Servicer, will select an index that is based on
comparable information, over which the Servicer has no control and that is
readily verifiable.
Section 8.2 Notice of Periodic Adjustment
8.2.1. Notice Requirement. The Notice of Periodic Adjustment is the
legal and official announcement to the Borrower of an ARM Loan of a change in
the Mortgage Interest Rate or the Monthly Payment. The Servicer must send this
notice to the Borrower, as stated in the related Mortgage Note and in accordance
with applicable law, and at least 25 days before each Payment Adjustment Date.
8.2.2. Notice Contents. Each Notice of Periodic Adjustment
pertaining to an ARM Loan shall meet the requirements and specifications of the
Security Instrument, the Mortgage Loan, and applicable federal or state laws or
regulations.
Section 8.3 ARM Loan Conversion
8.3.1. Servicer's Determination. In the event a Borrower with a
convertible ARM Loan exercises its option to convert such Mortgage Loan to a
fixed interest rate, the Servicer will determine whether the conditions and
qualifications for conversion have been met and determine the fixed rate to be
applied to such Mortgage Loan pursuant to the terms of the related Mortgage
Note.
8.3.2. Purchase by Servicer. The Servicer shall purchase such
Converted Mortgage Loan from the applicable Trustee at the Purchase Price by
depositing the Purchase Price into the Custodial P&I Account.
ARTICLE 9
Mortgage Loan Files
Section 9.1 Owner Mortgage Loan Files and Retained Mortgage Loan Files
9.1.1. Owner Mortgage Loan File and Retained Mortgage Loan File
Requirements. For each Mortgage Loan, the Master Servicer shall ensure that the
Custodian will maintain an Owner Mortgage Loan File on behalf of the Trustee
that contains each of the documents or instruments specified in Section 2.01(a)
of the Pooling and Servicing Agreement.
For each Mortgage Loan after a Document Transfer Event, the Servicer
shall deliver to the Custodian the Retained Mortgage Loan File that contains
each of the documents or instruments specified in Section 2.01(b) of the Pooling
and Servicing Agreement and the Custodian will maintain such Retained Mortgage
Loan File on behalf of the Trustee.
9.1.2. Custodian .If the original Security Instrument or the
Assignment from the respective prior owner of the related Mortgage Loan to the
Trustee or, if applicable, to the Trust Administrator, on behalf of the Trustee,
has not been delivered to the Custodian on the date of the transfer of ownership
of such Mortgage Loan to the Trustee because it is in the process of being
recorded, the Servicer shall, within five Business Days after its receipt of the
original recorded document, deliver it to the Custodian. The Servicer shall
promptly deliver to the Custodian any other Mortgage Loan Document to be
included in an Owner Mortgage Loan File, charged to the custody of the
Custodian, that comes into Servicer's possession.
9.1.3. Release of Documents from Owner Mortgage Loan File or
Retained Mortgage Loan File. In the event any document contained in an Owner
Mortgage Loan File or, after the Document Transfer Event, a Retained Mortgage
Loan File, is needed by the Servicer for the proper servicing of a Mortgage
Loan, the Servicer must send to the Trustee or the Custodian, as the case may
be, two copies of a Request for Release as defined in the Pooling and Servicing
Agreement of documents. The Master Servicer hereby authorizes the Trustee or the
Custodian, as the case may be, to release such Owner Mortgage Loan Files or
Retained Mortgage Loan Files after receipt of such Servicer's request (i) upon
payment in full of such Mortgage Loan, (ii) when necessary for foreclosure or
(iii) for such other cause as the Master Servicer deems appropriate, in its
reasonable discretion. The Servicer shall be responsible for such Mortgage Loan
Documents while they are in its possession and will be deemed to hold such Owner
Mortgage Loan Files or Retained Mortgage Loan Files in trust for the benefit of
the Trustee. If such Mortgage Loan has not been paid in full or otherwise
liquidated, the Servicer shall promptly return such Owner Mortgage Loan Files or
Retained Mortgage Loan Files when they are no longer required. Notwithstanding
the foregoing, unless such Mortgage Loan has been liquidated or the related
Owner Mortgage Loan Files or Retained Mortgage Loan Files have been delivered to
an attorney, a public trustee or other public official in order to foreclose on
the related Mortgaged Property, all such Owner Mortgage Loan Files or Retained
Mortgage Loan Files released by the Trustee or the respective Custodian, as the
case may be, must be returned within 60 calendar days after their release.
9.1.4. Execution by Trustee. In the event the Trustee's signature is
required on any document with respect to a Mortgage Loan for any reason,
including payment in full, assumption or foreclosure, the Servicer shall deliver
to the Trustee a written notice requesting that the Trustee execute such
documents and certifying as to the reason such documents are required. Upon
receipt of such executed documents, the Servicer shall record, file or deliver
such documents as appropriate for the proper servicing of such Mortgage Loan.
9.1.5. Representing Party Officers' Certificate. If it is necessary
for the respective Representing Party to deliver an Officers' certificate with
respect to the existence of a Title Insurance policy or a Primary Mortgage
Insurance policy for several Mortgage Loans, the Master Servicer may consent to
the delivery of a single Officers' certificate of the respective Representing
Party for a schedule of mortgage loans in lieu of a separate Officers'
certificate for each such Mortgage Loan.
9.1.6. Custodial Fees. The Servicer is responsible for the related
ongoing fees of each Custodian. If for any reason at any time the Master
Servicer pays custodial fees (including any payment made by the Master Servicer
pursuant to Section 3.4 of the Custodial Agreement), the Servicer will promptly
reimburse the Master Servicer for such payments.
Section 9.2 Servicer Mortgage Loan Files
9.2.1. Servicer Mortgage Loan File Requirements. The Servicer must
maintain a Servicer Mortgage Loan File for each Mortgage Loan, which may be
distributed among several different files, each of which shall be clearly marked
with the Servicer Loan Number and shall be readily accessible to the Master
Servicer during regular business hours, that includes the following:
(a) copies of each of the documents listed in Section 2.01 of the
Pooling and Servicing Agreement that are held by the Custodian as part of
the Owner Mortgage Loan File or Retained Mortgage Loan File, if
applicable;
(b) where such coverage is not provided under a blanket policy
maintained by the Servicer, an original Hazard Insurance policy, or a copy
thereof, or a certificate of insurance issued by the applicable insurer or
its agent indicating such a policy is in effect for the related Mortgaged
Property;
(c) a Flood Insurance policy or a certificate of insurance issued by
the insurer or its agent indicating that such a policy is in effect with
respect to the related Mortgaged Property, if Flood Insurance is required
pursuant to the provisions of Section 15.4 or Section 16.6 hereof for such
Mortgaged Property;
(d) originals or copies of all documents submitted to a Primary
Mortgage Insurer for credit and property underwriting approval with
respect to the related Mortgaged Property, if Primary Mortgage Insurance
is required pursuant to the provisions of Section 15.2 hereof for such
Mortgaged Property;
(e) the originals of all RESPA and Regulation Z disclosure
statements executed by the Borrower with respect to such Mortgage Loan;
(f) the related Appraisal Report made at the time such Mortgage Loan
was originated;
(g) the HUD-1 or other settlement statement for the purchase or
refinance, as the case may be, of the Mortgaged Property by the Borrower
and mortgagor under the related Mortgage Note and Security Instrument with
respect to such Mortgage Loan;
(h) evidence of any tax service contract, if any;
(i) copies of documentation, including the appropriate approval by
the Master Servicer, relating to any modifications to the related original
Mortgage Loan Documents;
(j) documentation, including the appropriate approval by the Master
Servicer, relating to any releases of any collateral supporting such
Mortgage Loan;
(k) collection letters or form notices sent to the Borrower with
respect to such Mortgage Loan, but only if the Servicer does not maintain
separate collection files, including all collection letters or notices,
indexed by Borrower;
(l) foreclosure correspondence, bankruptcy correspondence and legal
notifications, if applicable with respect to the related Mortgaged
Property; and
(m) all other related Mortgage Loan Documents which are customarily
maintained in accordance with Prudent Servicing Practices in a mortgage
loan file in order to properly service a mortgage loan including, without
limitation, documents regarding title claims.
9.2.2. Servicer Mortgage Loan File Access. The Servicer acknowledges
that each Servicer Mortgage Loan File shall be held in trust for the Trustee.
The Servicer further acknowledges that the Master Servicer may, from
time-to-time, request immediate delivery of any or all Mortgage Loan records and
documents to the Master Servicer, the Trustee, the Custodian or another entity
designated by the Master Servicer, and the Servicer shall thereupon immediately
deliver such records and documents, at the expense of the Servicer. The Servicer
agrees to permit the Master Servicer, from time to time to conduct audits or
inspections of any Servicer Mortgage Loan Files at one or more of the Servicer's
offices during normal business hours with advance notice. The Servicer must
grant the Master Servicer access to all books, records and files relating to the
Servicer's systems and procedures for servicing Mortgage Loans as to all
Servicer Mortgage Loan Files or to the Servicer's compliance with the terms and
conditions of this Agreement.
9.2.3. Alternate Media. Subject to any applicable law concerning
document retention requirements, the Servicer may maintain any Servicer Mortgage
Loan File, or any portion thereof, on microfilm, microfiche, optical storage or
magnetic media and may retain the microfilm, microfiche, optical storage or
magnetic media in lieu of hard copies of the documents required to be maintained
in such Servicer Mortgage Loan Files. The following requirements must be met:
(a) the process must accurately reproduce originals onto a durable
medium;
(b) unless the Master Servicer provides otherwise by notice to the
Servicer, the Master Servicer Loan Number must be clearly marked on the
copies or optical storage or magnetic media;
(c) the copies or optical storage or magnetic media must be easily
transferable to legible hard copies of the material relating to the
Mortgage Loans; and
(d) backup copies of the microfilm, microfiche, optical storage or
magnetic media must be made by the Servicer and retained off-site to
protect against fire and other hazard losses.
If the copies, optical storage or magnetic media become damaged or lost for any
reason, the Servicer must bear the entire cost of restoring each Servicer
Mortgage Loan File and any other related documents which had been transferred to
microfilm, microfiche, optical storage or magnetic media. The Servicer also must
bear all costs of reproducing legible hard copies reasonably requested by the
Master Servicer. The Master Servicer may reasonably request copies of any
Servicer Mortgage Loan File in optical storage or magnetic media which the
Servicer has previously transferred to magnetic media or optical storage, as the
case may be. The Servicer shall furnish to the Master Servicer optical storage
or magnetic media copies of the requested Servicer Mortgage Loan File in such
format as maintained by the Servicer at the Servicer's expense.
Section 9.3 Requisite Form
9.3.1. Form of Endorsements. Except for endorsements in blank, the
Servicer shall require that endorsements of any Mortgage Notes comply with the
format specified in Section 2.01(c) of the Pooling and Servicing Agreement.
9.3.2. Form of Assignment. Except for assignments in blank or in the
case of any Security Instrument registered in the name of MERS, the Servicer
shall require that assignments of any Security Instrument comply with the
following format specified in Section 2.01(c) of the Pooling and Servicing
Agreement.
ARTICLE 10
Escrows
Section 10.1 Escrow Criteria
10.1.1. Escrow Requirement. Unless, (a) at the origination of a
Mortgage Loan the Borrower is not required to make Escrow Item payments
thereafter, (b) Escrow Funds collection has been waived pursuant to Section
10.5.1 hereof, or (c) the collection of Escrow Funds is precluded by applicable
law, the Servicer must continue to collect 1/12th of the annual total for all
Escrow Items with each Monthly Payment on such Mortgage Loan, as determined
pursuant to Section 10.3.1 hereof.
10.1.2. Mortgage Loans without Escrow. If the Servicer is not
required to collect Escrow Funds on a Mortgage Loan, the Servicer shall require
proof of payment of all taxes, ground rents, assessments, insurance or other
charges, or use other means commonly used in the mortgage industry to ascertain
that such items are paid on a timely basis.
Section 10.2 Payment of Escrow Items
10.2.1. Escrow Payment Obligation. Where the Servicer is responsible
for the collection of Escrow Funds with respect to a Mortgage Loan, the Servicer
shall promptly pay all bills for any Escrow Items in such a manner as to avoid
late charges or penalties and to take advantage of any available discount.
10.2.2. Escrow Item Payments. Where (a) the Servicer has been
collecting Escrow Funds with respect to a Mortgage Loan, or (b) the Borrower has
not been obliged to make Escrow Funds payments or such payments have been waived
and such Borrower has failed to timely pay obligations which otherwise would be
Escrow Items, the Servicer must pay any obligation (i) which could become a
first lien on the related Mortgaged Property, or (ii) to maintain in force the
applicable Insurance Policies. Where Escrow Funds are maintained by the
Servicer, such obligations should be paid from the Borrower's Escrow Funds, or
in accordance with Section 10.2.3 hereof.
10.2.3. Escrow Fund Insufficiency. When a Borrower's Escrow Funds
are insufficient to pay taxes, assessments and premiums, when due, subject to
applicable law, the Servicer must attempt to obtain the additional funds from
such Borrower. If sufficient additional funds have not been recovered by the
time the payment is due, the Servicer must advance its own funds to ensure
prompt payment. The Servicer may elect to advance funds prior to attempting to
obtain the additional funds from such Borrower; however, to the extent permitted
by applicable law, the Servicer shall thereafter attempt to obtain the advanced
funds from the Borrower or collect such advanced funds as described in Section
10.3.3.
10.2.4. Nonpayment Notice. The Servicer must notify the Master
Servicer immediately of any Escrow Item that does not conform to either FNMA or
FHLMC standards.
Section 10.3 Escrow Fund Determination
10.3.1. Escrow Funds Analysis. Subject to all applicable Federal,
State and local laws, the Servicer must conduct an analysis of each Borrower's
Escrow Funds at least annually to determine the monthly deposits which must be
made by such Borrower. The analysis shall be performed based upon (a) reasonable
projections of the expenses to be paid from the Escrow Funds and (b) that as
such expenses come due, the Escrow Funds balance shall at all times be
sufficient to effect the payment of such expenses, unless a lower amount is
required by applicable law. Each Borrower must receive a statement of this
analysis. The analysis also must determine whether there is a surplus or
deficiency in such Borrower's Escrow Funds.
10.3.2. Escrow Fund Surplus. A surplus in a Borrower's Escrow Funds
shall be refunded to such Borrower or taken into consideration in determining
the amount to be collected for Escrow Funds.
10.3.3. Escrow Fund Deficiency. Where it is determined that a
deficiency exists in such Borrower's Escrow Funds, such Borrower may be
requested to pay the shortage in full or the deficiency may be taken into
consideration in determining the amount to be collected for Escrow Funds during
the next twelve months (or such longer period as may be permitted in the
discretion of the Servicer).
Section 10.4 Records
10.4.1. Escrow Funds Records. The Servicer shall keep records of
Escrow Funds collected from each Borrower.
10.4.2. Escrow Obligations Records. The Servicer must maintain
accurate records of the imposition of Escrow Item obligations and the payment of
Escrow Items.
Section 10.5 Escrow Waiver
10.5.1. Waiver Conditions. For any Mortgage Loan (other than a GPM
or GPARM Loan which provides for negative amortization in the future) that has
amortized down so that its current LTV is 80% or less, the Servicer may waive
the Borrower's future obligation to make Escrow Funds payments provided:
(a) the Unpaid Principal Balance of such Mortgage Note divided by
the value of the Mortgaged Property based on an appraisal made within 60
days of the date of determination is 80% or less;
(b) such Mortgage Loan is at least 12 months old; and
(c) such Mortgage Loan has not been more than 30 days delinquent
during the preceding 12 months.
10.5.2. Waiver Rescission. The Servicer shall enforce the Escrow
Funds requirements with respect to any Mortgage Loan if the related Borrower
fails to act responsibly in making the required payments.
ARTICLE 11
Collection and Servicing Practices
Section 11.1 General Servicing Requirements
11.1.1. Servicing Practices. The Servicer agrees to service Mortgage
Loans in accordance with the requirements of this Agreement. In general, where
not otherwise expressly required by the provisions of this Agreement, the
Servicer shall service the Mortgage Loans in accordance with Prudent Servicing
Practices and generally in accordance with FNMA guidelines. As to each Mortgage
Loan, the Servicer shall take all such actions as may be necessary to preserve
the lien of the related Security Instrument upon the related Mortgaged Property.
11.1.2. Tax Returns and Other Reports. Unless otherwise instructed
by notice from the Master Servicer, the Servicer shall forward to each Mortgagor
such forms and furnish such information within the control of the Servicer as
are required by the Code to be furnished to them and shall prepare and file
annual reports required by the state authorities. By way of example, the
Servicer shall provide the Mortgagors with the reports required under Code
Sections 6050H (e.g., reporting on Form 1098 any mortgage interest, including
points, received and any reimbursements of qualified mortgage interest) and
6050J (Abandonments and Foreclosure of Real Property, Form 1099-A).
11.1.3. Servicer Internal Controls. The Servicer shall maintain at
all times an adequate system of audit and internal controls in accordance with
Prudent Servicing Practices.
11.1.4. Pool Insurance Compliance. Notwithstanding any other
provision of this Agreement, the Servicer shall at all times comply with all
applicable Pool Insurance policy requirements so as to assure the full benefit
of such Pool Insurance policy to the Trustee.
11.1.5. Primary Mortgage Insurance Compliance. Notwithstanding any
other provision of this Agreement, the Servicer shall at all times comply with
all applicable Primary Mortgage Insurance policy requirements so as to assure
the full benefit of such Primary Mortgage Insurance policy to the Trustee.
11.1.6. Letter of Credit Compliance. Notwithstanding any other
provision of this Agreement, the Servicer shall comply with all the requirements
of any Letter of Credit so as to assure the full benefit of such Letter of
Credit to the Trustee.
Section 11.2 Delegation of Duties
11.2.1. Permissible Delegations. Without the written consent of the
Master Servicer authorizing further delegations, the only servicing duties which
the Servicer may elect to delegate, by agency, subcontract or otherwise, and the
only categories of such delegees, are as follows:
(a) professional collection agencies to perform those duties and
functions for the collection of delinquent amounts due on any Mortgage
Loan that are customarily performed by such agencies in the locality where
the related Mortgaged Property are located;
(b) title insurance companies, escrow companies and trust companies
to issue or provide reports reflecting the condition of title to any
Mortgaged Property and services incidental to the foreclosure or
acquisition in lieu of foreclosure of any Mortgaged Property, or the sale
or disposition of any Mortgaged Property acquired by the Servicer;
(c) attorneys licensed to practice in the state where the related
Mortgaged Property is located to perform customary legal services in
connection with the foreclosure or acquisition of such Mortgaged Property
or the sale or disposition of such Mortgaged Property acquired by the
Servicer at or in lieu of foreclosure, or for the collection of delinquent
sums owed on any Mortgage Loan;
(d) professional property inspection companies and appraisers to
conduct routine inspections of, and provide written inspection reports on,
any Mortgaged Property as required by this Agreement;
(e) title companies, escrow companies and real estate tax service
companies to provide periodic reports as to the amount of real estate
taxes due on any Mortgaged Property and the due date or dates of each
required installment;
(f) credit bureaus or credit reporting companies to provide credit
reports on Borrowers or persons who have applied to assume any Mortgage
Loans;
(g) construction companies, contractors and laborers to provide
labor, materials and supplies necessary to protect, preserve and repair
any Mortgaged Property as required by this Agreement;
(h) lock box providers or payment processing administrators to
provide payment processing services;
(i) hazard insurance servicing companies to provide periodic reports
as to the amount of hazard insurance premiums due on any Mortgaged
Property and the Due Date or Due Dates of each required premium payment;
and
(j) such other third party service providers as the Servicer, in
accordance with Prudent Servicing Practices, may deem appropriate.
11.2.2. Delegee's Qualifications. The Servicer shall assure that
each Person retained to provide any of the services set forth in Section 11.2.1
hereof is fully licensed and holds all required Federal, State or local
governmental franchises, certificates and permits necessary to conduct the
business in which he is engaged and that such Person is reputable,
knowledgeable, skilled and experienced and has the necessary personnel,
facilities and equipment required to provide the services for which he is
retained.
11.2.3. Responsibility for Costs. Any Person retained in accordance
with Section 11.2.1 hereof shall be retained solely for the Servicer's account
and at the Servicer's sole expense and shall not be deemed to be an agent or
representative of the Trustee, its successors or assigns, or the Master Servicer
or its successors or assigns.
11.2.4. Servicer's Liability. The Servicer shall remain liable to
the Master Servicer for the performance of the Servicer's duties and obligations
under this Agreement, notwithstanding the delegation of any servicing function
pursuant to this Section 11.2.
Section 11.3 Due-on-Sale Clause Enforcement
11.3.1. Enforcement Requirement. The Servicer is required to enforce
the Due-on-Sale Clause on any Mortgage Loan to the extent permitted by
applicable law upon the transfer of title of the related Mortgaged Property
unless (a) a Mortgage Loan is assumable pursuant to the terms of the related
Mortgage Note Assumption Rider, or (b) enforcement of the Due-on-Sale Clause
will jeopardize the Primary Mortgage Insurance coverage on such Mortgage Loan.
11.3.2. [Reserved].
11.3.3. Approval Requirement. In all circumstances of an unapproved
transfer of a Mortgaged Property initiated by the Borrower, the Servicer is
required to promptly notify, where applicable, the respective Primary Mortgage
Insurer and/or the respective Pool Insurer, of such transfer and obtain written
approval before initiating enforcement proceedings.
11.3.4. Exempt Transactions. (a) The Servicer shall not be required
to enforce the due-on-sale (or transfer) provision of this Agreement for certain
types of property transfers or related transactions. The Servicer shall process
these exempt transactions without the approval or notification of the Master
Servicer. In each case, the Mortgaged Property shall remain subject to the lien
of the related Mortgage Loan, and each transferee or grantee described below
shall take subject to such lien. The following transactions shall be deemed to
be exempt transactions and shall require the review and approval of the Servicer
only prior to transfer:
(i) a transfer of the Mortgaged Property to the surviving party
on the death of a joint tenant or a tenant by the entirety;
(ii) a transfer of the Mortgaged Property to a junior lienholder
as the result of a foreclosure or the acceptance of a deed in
lieu of foreclosure for the subordinate mortgage;
(iii) a transfer of the Mortgaged Property (or, if the Borrower is
an inter vivos revocable trust, a transfer of a beneficial
interest in such trust) to a relative of a deceased Borrower
(or, in the case of an inter vivos revocable trust Borrower,
to a relative of the individual who established the trust),
provided that the transferee will occupy the Mortgaged
Property;
(iv) a transfer of the Mortgaged Property (or, if the Borrower is
an inter vivos revocable trust, a transfer of a beneficial
interest in such trust) to the spouse, child(ren), parent(s),
brother(s), or sister(s), grandparent(s), or grandchild(ren)
of the Borrower (or, in the case of an inter vivos revocable
trust Borrower, of the individual who established the trust),
provided that the transferee will occupy the Mortgaged
Property;
(v) a transfer of the Mortgaged Property (or, if the Borrower is
an inter vivos revocable trust, a transfer of a beneficial
interest in such trust) to a spouse of the Borrower (or, in
the case of an inter vivos revocable trust Borrower, of the
individual who established the trust) under a divorce decree
or legal separation agreement or from an incidental property
settlement agreement, provided that the transferee will
occupy the Mortgaged Property;
(vi) a transfer of a Mortgaged Property that is jointly owned by
unrelated co-borrowers from one of the Borrowers to the
other, provided that the Borrower who is gaining full
ownership of the Mortgaged Property shall continue to occupy
it and the transfer occurs after at least 12 months have
elapsed since the Mortgage Loan was closed;
(vii) a transfer of the Mortgaged Property (or, if the Borrower is
an inter vivos revocable trust, a transfer of a beneficial
interest in such trust) into an inter vivos revocable trust
(or, if the Borrower is an inter vivos revocable trust, into
a new trust), so long as the Borrower (or the individual who
established the original inter vivos revocable trust) will be
the beneficiary of the trust and the occupant of the
Mortgaged Property;
(viii) the granting of a leasehold interest in the Mortgaged
Property that has a term of three or fewer years and does not
provide an option to purchase the Mortgaged Property, or a
renewal option that would allow the term to extend beyond
three years;
(ix) the creation of a subordinate lien upon the Mortgaged
Property, provided that there is no transfer of occupancy
rights therein; or
(x) the creation of a purchase money security interest for
household appliances which are situated in or upon the
Mortgaged Property.
(b) If the individual or entity transferring the Mortgaged Property
requests a release of liability, the Servicer must review the credit and
financial capacity of the individual or entity receiving the Mortgaged
Property. The Servicer may approve the release of liability if it believes
the recipient is capable of assuming the mortgage obligations and, where
applicable, with the consent of the respective Primary Mortgage Insurer
and/or the respective Pool Insurer. If the Servicer does not believe that
the recipient is credit worthy or if the consent of the respective Primary
Mortgage Insurer and/or the respective Pool Insurer is required but not
obtained, the Servicer shall deny the request for the release of
liability, although the transfer may still be processed without the
release. If the request is denied based solely on the Primary Mortgage
Insurer's or the respective Pool Insurer's decision, the denial letter
should state that fact.
(c) The Servicer shall advise (i) each insurance company providing
Hazard Insurance and Flood Insurance, where applicable, (ii) the relevant
tax authorities, where applicable, (iii) the respective Primary Mortgage
Insurer and/or the respective Pool Insurer and (iv) other interested
parties when it processes transactions under this Section 11.3.4. The
Master Servicer does not need to be notified about such a transaction
unless the Servicer agrees to a release of liability under Section
11.3.4(b).
Section 11.4 Assumptions
11.4.1. Assumption Requirements. Any Assumption permitted under this
Agreement shall be performed in accordance with Prudent Servicing Practices. In
connection with an Assumption of an assumable Mortgage Loan, the Servicer shall
process such Assumption as provided for in the Mortgage Note or the Mortgage
Note Assumption Rider and shall verify that:
(a) no material term of the Mortgage Note (including, but not
limited to, the Mortgage Interest Rate, the remaining term to maturity,
the Gross Margin, the Index, the Maximum Lifetime Mortgage Interest Rate,
the Minimum Lifetime Mortgage Interest Rate, and any Periodic Rate Cap or
any Periodic Payment Cap) may be changed in connection with such
Assumption;
(b) that the new Borrower qualifies for credit under the Master
Servicer's criteria and standards for similar loans;
(c) where applicable, the respective Primary Mortgage Insurer,
and/or the respective Pool Insurer has in advance approved in writing such
Assumption of such Mortgage Loan by the new Borrower and such Mortgage
Loan will continue to be insured by such Primary Mortgage Insurer and/or
such Pool Insurer;
(d) the documents relating to such Assumption (i) create a valid and
enforceable promise to pay the Unpaid Principal Balance of the related
Mortgage Loan, together with interest thereon in accordance with the
related Mortgage Note by the new Borrower and (ii) the related Security
Instrument continues to evidence a valid and perfected first lien on the
related Mortgaged Property; and
(e) such Mortgage Loan will continue to be a valid first priority
security interest upon the related Mortgaged Property.
11.4.2. Approval and Release. In connection with an Assumption of an
assumable Mortgage Loan and in accordance with the provisions of the related
Mortgage Loan Documents, upon such verification, (a) the Servicer may approve
such Assumption and (b) only with the prior written approval of, where
applicable, the Primary Mortgage Insurer and/or the Pool Insurer, unless such
approval is precluded by the terms of the Mortgage Loan Documents, release the
previous Borrower from liability.
11.4.3. Assumption Agreement Provided to Custodian. The Servicer
shall provide to the Custodian the original assumption agreement.
11.4.4. Assumption Fees. Subject to applicable law or regulation and
the provisions of the related Mortgage Note, the Servicer may charge the
Borrower and retain a reasonable and customary assumption fee. Such fee is
receivable only from the Borrower directly and may not be withdrawn from any of
the custodial accounts maintained hereunder.
11.4.5. Disclosure Requirement. In connection with an Assumption of
an assumable Mortgage Loan, the Servicer shall make all disclosures required by
applicable law.
Section 11.5 Partial Releases and Easements
11.5.1. Prerequisites. The Servicer must take the following actions
prior to permitting the grant of a partial release of a Mortgaged Property from
the lien of the related Security Instrument, easement, consent to substantial
alterations and any other changes affecting the related Mortgage Loan or such
Mortgaged Property:
(a) where applicable, obtain the respective Primary Mortgage
Insurer's and/or the respective Pool Insurer's prior written approval;
(b) if the value of the released property is more than five thousand
($5,000) dollars, obtain an acceptable Appraisal Report showing the
current market value of such Mortgaged Property before and after the
release and showing individually both the value of the land and of the
improvements thereon;
(c) ensure that any and all cash consideration received at least
equals the current market value of property or rights to be released
regarding such Mortgaged Property;
(d) ensure that any and all cash consideration received is applied
to the Unpaid Principal Balance of such Mortgage Loan to the extent of the
diminution of the value of such Mortgaged Property;
(e) cause all legal documents for the transaction to be reviewed;
(f) ensure that such Mortgaged Property, following such release or
change, adequately secures the Unpaid Principal Balance of the Mortgage
Loan and accrued interest thereon and that the related Loan-to-Value ratio
will not be greater than 80%, after giving effect to clause (d) hereof;
and
(g) obtain written notification from the respective Title Insurer
that the related Title Insurance policy remains fully in effect with
respect to such Mortgaged Property, as modified, following such release or
change.
11.5.2. Release or Modification of Lien. With the consent, where
applicable, of the respective Primary Mortgage Insurer, and/or the respective
Pool Insurer, the Servicer may approve applications for partial release of a
Mortgaged Property from the lien of the related Security Instrument, easements,
consent to substantial alterations and any other changes affecting the related
Mortgage Loan or such Mortgaged Property if the perquisites in Section 11.5.1
have been satisfied.
11.5.3. Master Servicer's Approval. If the Servicer is not able to
meet the prerequisites specified in Section 11.5.1 or if the amount of
consideration received is less than the reduction in the value of the Mortgaged
Property due to the partial release or other changes, the Servicer must obtain
the approval of the Master Servicer prior to permitting an application described
in Section 11.5.2. The Servicer shall furnish such information as the Master
Servicer shall request in connection with an application under this Section
11.5.3.
Section 11.6 Recordation of Assignments
11.6.1. Recordation Requirement. The Servicer must, at its own
expense, record the Assignment of each Security Instrument (other than with
respect to any Mortgage Loan registered in the name of MERS) to the Trustee or,
if applicable, to the Trust Administrator on behalf of the Trustee, as well as
any previously unrecorded intervening Assignments. In the case of any Mortgage
Loan registered in the name of MERS, the Servicer shall take all actions as are
necessary to cause the Trustee or, if applicable, to the Trust Administrator on
behalf of the Trustee, to be shown as the owner of the related Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. If any Security Instrument
or Assignment is not recorded within the later to occur of (i) the date 120 days
after the acquisition of the a Mortgage Loan by the Trustee or, if applicable,
the Trust Administrator on behalf of the Trustee, if the Servicer has been
servicing such Mortgage Loan from the Trustee's or, if applicable, the Trust
Administrator's date of acquisition or (ii) the date 120 days after the date the
Servicer began servicing such Mortgage Loan, the Master Servicer shall have the
right to so effect such recordation at the Servicer's expense.
11.6.2. Extension of Recording Period. The time to record an
Assignment of a Security Instrument may be extended from the end of permissible
recordation period set forth in Section 11.6.1 if the Servicer provides an
Officer's Certificate acceptable to the Master Servicer certifying that the
Servicer has used its best efforts to complete the recordation process for the
Security Instrument and/or Assignment, as applicable, and that the factors
preventing completion of the recordation process are beyond the Servicer's
control.
11.6.3. Delivery Requirement. Promptly following the recordation of
any Security Instrument or an Assignment, the Servicer shall deliver to the
Custodian, unless otherwise directed in writing by the Master Servicer, such
Security Instrument or Assignment bearing evidence of recordation or, if the
original Security Instrument or Assignment is retained by the recording office,
a certified copy of the original recorded Security Instrument or Assignment.
11.6.4. Waiver of Recordation. The Master Servicer shall generally
require the Servicer to record an Assignment of the Security Instrument for each
Mortgage Loan to the Trustee or, if applicable, to the Trust Administrator on
behalf of the Trustee. However, the recordation requirement with respect to an
Assignment may be waived for a Mortgage Loan if (a) the related Mortgaged
Property is in a state in which recordation of such an Assignment is not
required to protect the Trustee's right, title and interest in and to the
related Mortgage Loan and the Depositor or the Servicer has delivered to the
Master Servicer an Opinion of Counsel, acceptable to the Master Servicer, to
that effect or (b) the Master Servicer has been advised by the Depositor that
the nonrecordation of an Assignment in a state will not result in a reduction of
the rating assigned by each Rating Agency at the time of the initial issuance of
the Xxxxx Fargo Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2008-AR2.
Section 11.7 General Servicing Considerations
11.7.1. Abandonment. If the Servicer discovers that any Mortgaged
Property is not occupied, the Servicer must immediately attempt to contact the
Borrower in order to determine the reason for the vacancy. If the Servicer
determines that such Mortgaged Property has been abandoned, the Servicer, at its
own expense, must take all necessary actions to protect such Mortgaged Property
from waste, damage and vandalism. Such expenses shall be recoverable by the
Servicer solely from the Liquidation Proceeds of the related Mortgage Loan, if
any, or directly from the Borrower.
11.7.2. Buydown Funds. The Servicer must distribute any Buydown
Funds in each Custodial Buydown Account in accordance with the terms of the
applicable Buydown Agreement.
11.7.3. Maintenance of Records. Based upon information obtained
pursuant to its obligations under Section 12.2.6, the Servicer shall maintain
accurate records of the occurrence of any of the following:
(a) deterioration of, waste of, or lack of repair to, any Mortgaged
Property, which materially and adversely affects the Value of such
Mortgaged Property and the Borrower refuses or is not financially able to
make the necessary repairs;
(b) sale or transfer of any Mortgaged Property in a manner not
approved by the Servicer pursuant to the provisions of this Agreement;
(c) material litigation involving any Mortgaged Property;
(d) abandonment of any Mortgaged Property;
(e) a material default, determined in accordance with Prudent
Servicing Practices, under the terms of any Security Instrument, Mortgage
Note, Condominium Project or PUD constituent document or similar
obligations of a Borrower; or
(f) any other situation that may materially and adversely affect the
value of any Mortgage Loan.
11.7.4. Eminent Domain. The Servicer must submit appropriate
recommendations and documentation to, where applicable, the respective Primary
Mortgage Insurer and/or the respective Pool Insurer, of any taking by eminent
domain if:
(a) the Mortgaged Property will be taken in whole and the
consideration to be paid to the Borrower will be insufficient to satisfy
the Unpaid Principal Balance (plus any unreimbursed Advances) of the
related Mortgage Loan, or
(b) the Mortgaged Property will be taken in part and (i) the ratio
of the (A) Unpaid Principal Balance (plus any unreimbursed Advances) of
the Mortgage Loan to (B) the Current Value of the remaining Mortgaged
Property is higher than (ii) the LTV ratio of the Mortgage Loan
immediately before the taking, even after applying any consideration to
the Unpaid Principal Balance of the Mortgage Loan.
The Servicer must take all steps necessary to prevent loss of any Primary
Mortgage Insurance or Pool Insurance benefits due to any taking by eminent
domain.
11.7.5. Late Charges. Late charges may not be assessed unless a
Borrower failed to make payments in accordance with the Mortgage Note.
Section 11.8 Borrower Bankruptcy
11.8.1. Servicer's Duty. The Servicer shall be responsible for
representing the interests of the Trustee in any bankruptcy proceedings
involving a Borrower.
11.8.2. Responsibility for Costs. The costs of protecting the
interests of the Trustee shall be advanced by the Servicer and are not (a)
chargeable to the related Borrower's Escrow Funds or (b) reimbursable from the
Master Servicer.
11.8.3. Challenge Bankruptcy Reductions. If the bankruptcy judge or
trustee should propose to (a) reduce the Unpaid Principal Balance of a Mortgage
Note, (b) reduce the related Mortgage Interest Rate, (c) extend the final
maturity of such Mortgage Note, or (d) reduce the level of any monthly payment
on such Mortgage Note, the Servicer shall (i) challenge any such modification on
a timely basis when reasonable and prudent and (ii) exercise reasonable judgment
to protect the interests of the Trustee.
11.8.4. Bankruptcy Adjustments. If the action of any court results
in a Deficient Valuation or Debt Service Reduction, the Servicer shall notify
the Master Servicer of the new principal balance, Mortgage Interest Rate, new
final maturity, or monthly payment level, as the case may be, of such Mortgage
Loan.
11.8.5. Bankruptcy Plan Surveillance. With respect to each Mortgage
Loan which is the subject of a Deficient Valuation or a Debt Service Reduction,
the Servicer shall verify that payments are being made in accordance with the
plan approved in the related bankruptcy proceedings.
ARTICLE 12
Delinquency Management
Section 12.1 In General
12.1.1. Servicing Practices. The provisions set forth in this
Article constitute the minimum guidelines and procedures for servicing
Delinquent Mortgage Loans. The Servicer must use collection procedures which
meet or exceed these guidelines. The Servicer's procedures must be sufficient
for promptly dealing with delinquencies. The Master Servicer retains the right
to require the Servicer to perform additional collection procedures which the
Master Servicer deems, in its reasonable discretion, necessary to realize the
objectives set forth herein or otherwise to protect the interests of the
Trustee.
12.1.2. Servicer's Capabilities. The Servicer's collection staff
must be sufficiently skilled in financial counseling and mortgage servicing
techniques to assist a Borrower to bring his Mortgage Loan current and to
protect his equity and credit rating, while at the same time protecting the
interests of the Trustee and of the Master Servicer.
12.1.3. Servicing Objectives. The purpose of any collection effort
is to cure a Delinquency in the shortest possible time. The Servicer should
treat each Delinquency individually. Discussions with the Borrower must cover
the cause of such Delinquency and the time frame in which such Delinquency shall
be cured. The Servicer should use notices, letters, telegrams, telephone calls,
face-to-face contact and other responsible collection techniques consistent with
Prudent Servicing Practices. The Servicer is required to maintain all collection
records. The Servicer must vary its collection techniques to fit individual
circumstances, avoiding a fixed collection pattern which may be ineffective in
dealing with particular Borrowers. The Servicer should recognize the importance
of telephone and face-to-face contact in any collection program. As part of its
collection procedures, the Servicer shall closely monitor all newly originated
Mortgage Loans.
12.1.4. Servicer's Expenses. Unless otherwise specified, the cost of
any of the servicing procedures detailed in this Agreement shall be borne solely
by the Servicer. The Servicer may not charge such expenses against the
Borrower's Escrow Funds. The foregoing shall not preclude the Servicer from
recovering such expenses from the Borrower to the extent permitted by applicable
law and the related Mortgage Loan Documents.
Section 12.2 Delinquency Servicing Procedures
12.2.1. Late Notice. A late notice shall be mailed by the Servicer
to the Borrower by the 18th day of such Delinquency.
12.2.2. Telephonic Inquiry. The Servicer shall use best efforts to
make telephone contact with the Borrower by the 22nd day of such Delinquency.
12.2.3. Notice of Default. Notification of default of such Mortgage
Loan shall be mailed by the Servicer to the Borrower by the 35th day of such
Delinquency.
12.2.4. Borrower Interview. The Servicer shall comply with
applicable FNMA and FHLMC requirements with regard to Borrower interviews.
12.2.5. Continuing Contacts. If satisfactory arrangements have not
been made to cure such Delinquency by the 90th day, the Servicer must continue
to contact the Borrower until either the related Mortgage Loan has been brought
current or the Servicer has made the decision to commence foreclosure of such
Mortgaged Property or other action.
12.2.6. Property Inspection. The Servicer is required to inspect
each Delinquent Mortgaged Property at such time and in such manner as is in
accordance with Prudent Servicing Practices. The Servicer must prepare a
Property Inspection Report following each inspection. All Property Inspection
Reports must be retained by the Servicer and copies thereof must be forwarded to
the Master Servicer promptly upon request. All expenses related to the foregoing
shall be recoverable by the Servicer from the Principal or from Liquidation
Proceeds, Insurance Proceeds, payments on the related Mortgage Loan or any other
source relating to the related Mortgage Loan or the related Mortgaged Property.
The foregoing shall not preclude the Servicer from recovering such expenses from
the Borrower to the extent permitted by applicable law and the related Mortgage
Loan Documents.
Section 12.3 Relief of Borrowers
12.3.1. Servicer's Role. The Servicer shall be readily available to
Borrowers to offer skilled financial counsel and advice and shall make personal
contact with delinquent Borrowers as often as possible to achieve a solution
that will bring the Mortgage Loan current as soon as possible. The Servicer
shall be fully familiar with the form of relief to Borrowers provided for herein
and shall employ such relief.
12.3.2. [Reserved]
12.3.3. Relief Requirement. Prior to granting relief with respect to
a delinquent Mortgage Loan as herein provided, the Servicer shall ascertain that
(i) the reasons for the default and (ii) the attitude and circumstances of such
Borrower justify the relief to be granted.
12.3.4. Primary Mortgage Insurance Considerations. Where applicable,
the Servicer shall satisfy all requirements under the applicable Primary
Mortgage Insurance policy regarding the relief granted with respect to a
delinquent Mortgage Loan.
12.3.5. Responsibility for Costs. The Servicer is responsible for
collection from such Borrower of any recording or similar costs or expenses
incidental to the granting of relief with respect to a delinquent Mortgage Loan.
12.3.6. Forbearance Plan; Modification. (a) Where relief is
appropriate, the Servicer shall arrange with a Borrower a "Forbearance Plan"
giving such Borrower a definite period in which to reinstate his Mortgage Loan
by immediately commencing payments in excess of the regular Monthly Payments.
Without the prior written consent of the Master Servicer, special forbearance
relief agreements reducing or suspending the regular Monthly Payment of the
related Mortgage Loan for a specified period of time are not permitted. To the
extent that (i) the priority of the lien represented by such Mortgage Loan
remains in effect and is not adversely affected, (ii) where applicable, the
related Primary Mortgage Insurance policy remains in full force and effect and
(iii) where applicable, the related Pool Insurance policy remains in full force
and effect, the Servicer, in its discretion, may enter into a Forbearance Plan
that provides that the total amount owed during such Delinquency, including
costs and expenses, will be repaid within the shortest period practicable,
commencing immediately. With respect to such Mortgage Loan, the Forbearance Plan
shall provide that such Delinquency will be cured within a period conforming to
acceptable servicing practices. The Forbearance Plan for such Mortgage Loan
shall be set forth in writing in the form of a letter agreement if the earliest
unpaid installment is more than 60 days past due.
(b) The Servicer may modify the payment terms of Mortgage Loans that
are in default, or as to which default is reasonably foreseeable in accordance
with the provisions of Section 3.1.2. Nothing in this Section 12.3.6(b) shall be
construed to limit the ability of the Servicer to arrange for the sale of a
Mortgaged Property pursuant to Section 13.3.3.
12.3.7. Accommodation Limitations. No modification, recast,
extension, or capitalization of delinquent payments of a Mortgage Loan other
than as provided in Sections 3.1.2 and 12.3.6 hereof shall be permitted with
respect to a Mortgage Loan.
12.3.8. Pool Insurance Considerations. Where applicable, the
Servicer shall satisfy all requirements under the applicable Pool Insurance
policy regarding the relief granted with respect to a delinquent Mortgage Loan,
including, without limitation, securing the prior written consent of the
respective Pool Insurer regarding (a) any change in any term of such Mortgage
Loan, (b) the release of the related Borrower from any liability related to such
Mortgage Loan, or (c) the release of any portion of, or interest in, the
Mortgaged Property from the lien of the related Security Instrument.
Section 12.4 Special Delinquency Servicing Considerations
12.4.1. Advance Responsibility During Delinquency. In the event of a
Delinquency with respect to a Mortgage Loan, the Servicer agrees to advance from
its own funds the full amount of Monthly Payments (which may be net of the
related Servicing Fee) for such Mortgage Loan. These advances shall provide the
Trustee with a regular flow of funds on such delinquent Mortgage Loan. The
advance obligation stated above is in addition to any other advance obligations
which the Servicer has pursuant to the provisions of this Agreement. The
Servicer must still advance funds in accordance with the provisions of this
Agreement even if a forbearance has been granted.
12.4.2. Primary Mortgage Insurance Compliance. Where applicable, the
Servicer shall be familiar with and shall satisfy all requirements of the
applicable Primary Mortgage Insurance policy with respect to a delinquent
Borrower. The Servicer shall have adequate controls to assure timely filing of
all notices to the appropriate Primary Mortgage Insurer. The Servicer shall
prepare and file all appropriate claims with respect to the applicable Primary
Mortgage Insurance policy and the Servicer shall prepare and, upon request,
deliver to the Master Servicer, copies of all claims forms and other papers
received from or presented to any Primary Mortgage Insurer in connection with
any claims presented under any such policy.
12.4.3. Pool Insurance Compliance. Where applicable, the Servicer
shall be familiar with and shall satisfy all requirements of the applicable Pool
Insurance policy with respect to a delinquent Borrower. The Servicer shall have
adequate controls to assure timely filing of all notices to the appropriate Pool
Insurer. Copies of all such notices shall be sent to the Master Servicer upon
request. The Servicer shall prepare and file all appropriate claims with respect
to the applicable Pool Insurance policy and the Servicer shall prepare and, upon
request, deliver to the Master Servicer, copies of all claims forms and other
papers received from or presented to any Pool Insurer in connection with any
claims presented under any such policy.
ARTICLE 13
Foreclosure Administration
Section 13.1 Foreclosure Prerequisites
13.1.1. Foreclosure/Alternative to Foreclosure Initiation. (a) When
a Borrower reaches the 90th day of Delinquency and the Servicer has exhausted
all reasonable means of curing the Delinquency, the Servicer shall either begin
the foreclosure process or suggest an alternative to foreclosure in accordance
with Prudent Servicing Practices. In conjunction with the Servicer's decision to
begin the foreclosure action or seek an alternative to foreclosure, the Servicer
shall provide written notice to, where applicable, the respective Primary
Mortgage Insurer and/or the respective Pool Insurer, via the monthly reports, no
later than the twenty-first (21st) calendar day of the month following the month
in which the initiation of foreclosure proceedings or the alternative to
foreclosure occurred. Notwithstanding anything to the contrary in this Section
13.1.1, the Master Servicer may direct the Servicer to stop the foreclosure
action or to modify any alternative to foreclosure. The Servicer shall prepare
all necessary documentation to initiate the foreclosure proceedings.
(b) Notwithstanding anything to the contrary in this Section 13.1,
if the Master Servicer has entered into a special servicing agreement pursuant
to Section 3.08 of the Pooling and Servicing Agreement, the Master Servicer may
direct the Servicer to commence foreclosure proceedings as contemplated by such
special servicing agreement.
13.1.2. Foreclosure Expenses. All fees and expenses shall be
consistent with FNMA standards and, where applicable, shall not exceed those
permitted under the respective Pool Insurance policy and/or the respective
Primary Mortgage Insurance policy. Fees in excess of the amount permitted by
FNMA guidelines or extraordinary legal services must be approved in writing by
the Servicer. The billing by a foreclosure attorney must demonstrate the
appropriateness of any extraordinary fees by the services required. In cases of
full or partial reinstatement of the related Mortgage Loan, the fees shall be
reasonable and in proportion to the authorized fee for services rendered for a
completed foreclosure. Unless otherwise expressly agreed in writing, neither the
Master Servicer, any of its Affiliates, their respective officers, directors,
employees, agents, successors or assigns, the Trustee nor, if applicable, the
Trust Administrator shall be liable for any attorneys' fees, trustees' fees,
witness fees, title search fees, court costs or other expenses incurred by the
Servicer in respect of any foreclosure or acquisition in lieu of foreclosure,
except to the extent that such fees, costs and expenses are fully reimbursable
under a Primary Mortgage Insurance policy and in fact are reimbursed.
13.1.3. Hazardous Wastes. In the event that the Mortgaged Property,
related to a Mortgage Loan which is being considered for liquidation by
foreclosure or the transfer of a deed-in-lieu of foreclosure, contains, and the
Servicer has reason to believe that it contains, hazardous or regulated
substances which may impose liability, for damages, remediation or otherwise,
upon the owner of such Mortgaged Property pursuant to Federal, State or local
law, the Servicer shall not, except with the express prior written approval of
the Master Servicer, which approval makes specific reference to the presence of
such hazardous or regulated substances, undertake or continue the process of
foreclosure with respect to such Mortgaged Property.
Section 13.2 Deed-in-Lieu of Foreclosure
13.2.1. Conditions. The Servicer may accept a deed-in-lieu of
foreclosure without any further action or approval by the Master Servicer or,
where applicable, the respective Primary Mortgage Insurer and/or the respective
Pool Insurer, provided that:
(a) the Mortgaged Property has been listed for sale at a market
value for three months or more without a reasonable sales offer;
(b) the acceptance of the deed-in-lieu of foreclosure will enable
the Trustee to acquire the Mortgaged Property earlier than under a
foreclosure action;
(c) the Borrower has not received cash consideration to deed the
Mortgaged Property over to the Trustee, unless the Master Servicer
otherwise approves;
(d) the Borrower can convey acceptable marketable title, evidenced
by a Title Insurance policy;
(e) the Mortgaged Property is vacant (unless, where applicable, the
respective Primary Mortgage Insurer and/or the respective Pool Insurer has
agreed to accept an occupied property);
(f) the Mortgaged Property is not subject to liens (held by others),
judgments, or attachments; and
(g) the Borrower agrees to assign and transfer to the benefit of the
Trustee, where applicable, any rents if the Mortgaged Property is rented,
and the Servicer agrees to collect any rental income.
13.2.2. Subsequent Actions. Upon acquisition by the Trustee, the
Servicer shall promptly notify, if applicable, the respective Primary Mortgage
Insurer and/or the respective Pool Insurer, indicating the details of the
transaction and reasons for the conveyance and providing such other information
as is required under a Primary Inspection Report to, if applicable, the Primary
Mortgage Insurer and/or the Pool Insurer. Title shall be taken in the name of
the Trustee or its nominee and shall be conveyed directly from the Borrower to
the Trustee or to such nominee.
Section 13.3 Actions Prior to Foreclosure
13.3.1. Notice Requirements. The Servicer shall send the Borrower a
letter, not less than 30 days before the commencement of foreclosure
proceedings, setting out (i) the nature of the default, (ii) the steps that must
be taken by the Borrower to cure the default and (iii) the date when foreclosure
proceedings will begin. If the Servicer has reason to believe that the related
Mortgaged Property has been abandoned or if the Borrower has displayed an
obvious disregard for his obligations under such Mortgage Loan, the foregoing
notice shall be forwarded at the earliest possible date following the Borrower's
default.
13.3.2. Initiation of Proceedings. If foreclosure approval has not
been withheld by the Master Servicer and, where applicable, by the respective
Primary Mortgage Insurer and/or the respective Pool Insurer, with respect to a
Mortgaged Property, including Co-op Shares, the Servicer shall, unless it
arranges for the sale by the Borrower of the Mortgaged Property to a third party
pursuant to Section 13.3.3, initiate or cause to be initiated such foreclosure
actions as are authorized by law and consistent with practices in the locality
where the Mortgaged Property is located, including, in the case where such
Mortgaged Property includes a residential long-term lease, the succession by the
Servicer to the rights of the Borrower under the lease by foreclosure,
assignment in lieu of foreclosure or other comparable means. If such Mortgaged
Property has been abandoned or vacated by the Borrower and the Borrower has
evidenced no intention of honoring his obligations under the related Mortgage
Loan, the foreclosure process shall be expedited to the fullest extent permitted
by law.
13.3.3. Short Sale or Short Payoff of Defaulted Mortgage Loans in
Lieu of Foreclosure. With respect to any defaulted Mortgage Loan for which the
Servicer would otherwise be required to initiate foreclosure proceedings
Mortgage Loan which is in default or as to which default is reasonably
foreseeable the Servicer may arrange for the sale of the Mortgaged Property by
the Borrower to a third party or may accept a payment from the Borrower in
satisfaction of the Mortgage Loan in an amount less than the sum of all
principal, interest and other amounts due on such Mortgage Loan, if, in the good
faith judgment of the Servicer, the net proceeds from such sale or the amount of
such payment would be equal to or greater than the net proceeds of a bid
conducted in accordance with Section 13.4.2.
Section 13.4 Foreclosure Procedures
13.4.1. Foreclosure Expenses. During the period in which the
Mortgaged Property related to a Mortgage Loan is being foreclosed, remaining
Escrow Funds, if any, as well as any rent receipts, shall be used to pay all
taxes and insurance premiums that become due with respect to such Mortgaged
Property to the extent permitted by law. Except where other arrangements have
been made with the applicable Primary Mortgage Insurer, the Servicer shall, with
respect to each Mortgaged Property undergoing foreclosure, advance payment of
attorneys' fees, trustees' fees and other foreclosure costs from the
commencement of foreclosure proceedings pertaining to such Mortgaged Property.
13.4.2. Bidding Instructions. The Servicer shall issue bidding
instructions to the attorney or trustee in a foreclosure proceeding in
accordance with Prudent Servicing Practices. Where applicable, the Servicer
shall incorporate any bidding requirements issued by the respective Primary
Mortgage Insurer and/or the respective Pool Insurer. Any proceeds received from
an insurance loss settlement shall be included as part of the bid amount. Where
a claim or claim settlement under a Hazard Insurance or Flood Insurance policy
is pending, the Servicer shall contact the Hazard Insurance or Flood Insurance
carrier to verify that the proposed bid will not invalidate the claim, in that,
in certain jurisdictions, a bid for the total indebtedness will be considered as
satisfaction of the debt and would thus bar the Hazard Insurance or Flood
Insurance claim.
13.4.3. Buydown Funds Use. Unless the related Buydown Agreement
provides otherwise, the Servicer may not use Buydown Funds relating to a
Mortgage Loan to cure a Delinquency with respect to such Mortgage Loan. Any
Buydown Funds remaining in the associated Custodial Buydown Account of a
Mortgage Loan in foreclosure must be disposed of in accordance with the terms of
the related Buydown Agreement.
13.4.4. Servicer's Responsibilities. Subject to the provisions of
Article Three hereof, after acquisition of a Mortgaged Property, through
foreclosure or a deed-in-lieu of foreclosure, or after the Servicer shall have
taken possession of the Mortgaged Property, whichever occurs first, the Servicer
shall be responsible for the management of such Mortgaged Property. The Servicer
shall remain responsible until possession has been assumed by the applicable
Primary Mortgage Insurer or the applicable Pool Insurer or until such Mortgaged
Property are otherwise disposed of, as the case may be. The Servicer shall take
such action as is necessary to protect the Trustee's security or, after
acquisition thereof, ownership interest in such Mortgaged Property. Such action
shall include, without limitation, (i) management of such Mortgaged Property,
(ii) maintenance of such Mortgaged Property and (iii) if such Mortgaged Property
are vacant, protection of such Mortgaged Property against vandals and the
elements.
13.4.5. Conveyance Documents. Where applicable, any conveyance by
the Servicer to the respective Primary Mortgage Insurer or the respective Pool
Insurer of a Mortgaged Property shall be made by the form of deed commonly used
in the particular jurisdiction where such Mortgaged Property is located. The
Servicer shall prepare the necessary documents within two weeks after the date
of sale at foreclosure or confirmation of sale, if applicable, or within a
reasonable time frame. The documents shall be forwarded to the Trustee for
approval and execution. After execution by the Trustee, such documents will be
returned to the Servicer for delivery to the respective Primary Mortgage Insurer
or the respective Pool Insurer which is acquiring such Mortgaged Property.
Section 13.5 Mortgage Loan Reinstatement
13.5.1. Borrower's Full Payment. If a Borrower offers to fully
reinstate his Mortgage Loan during the foreclosure process, the Servicer shall
accept the offer. To achieve full reinstatement of his Mortgage Loan, a Borrower
shall make payment of all (i) payments due to bring such Mortgage Loan current,
(ii) attorneys' fees, (iii) trustees' fees, (iv) any additional legal costs, (v)
all applicable late fees and (vi) any other expenditures or Advances made by the
Servicer during the foreclosure process.
13.5.2. Borrower's Partial Payment. Except where otherwise required
by applicable law, the Servicer may not accept an amount in payment from a
Borrower which is less than the amount required for full reinstatement pursuant
to Section 13.5.1 hereof toward reinstatement of a Mortgage Loan during the
foreclosure process unless consistent with any applicable mortgage insurer
guidelines.
13.5.3. Obligations upon Reinstatement. Upon accepting the
reinstatement of a Mortgage Loan, the Servicer shall immediately contact the
appropriate foreclosure attorney or trustee to avoid incurring additional legal
costs or fees. The Servicer must apply the reinstatement Funds upon receipt from
a Borrower in payment of the expenses enumerated in Section 13.5.1 hereof. Upon
receipt of the reinstatement funds from a Borrower the Servicer must return to
the Custodian the related Mortgage Note and other related Mortgage Loan
Documents for reinclusion in the related Mortgage Loan File.
13.5.4. Certain Assumptions Permitted. The Servicer is authorized,
notwithstanding the other provisions of this Article 13, to permit the
assumption of a defaulted Mortgage Loan rather than to foreclose or accept a
deed-in-lieu of foreclosure if, in the Servicer's judgment, the default is
unlikely to be cured and the assuming borrower meets the underwriting guidelines
that originally applied to such Mortgage Loan.
ARTICLE 14
REO Administration
Section 14.1 General Provisions
14.1.1. REO Action Plan. With regard to each REO which is acquired,
the Servicer shall prepare a plan of action within 30 Business Days after the
later of the date on which (i) the Trustee acquires marketable title to such REO
or (ii) the property becomes vacant. Each plan of action shall set forth (i) a
recommendation for the most effective manner to dispose of the REO, based on a
current appraisal report, a broker's price opinion and a market analysis; (ii)
the steps to be taken by the Servicer to secure such REO; and (iii) an estimate
of the amount of time that is required to dispose of such REO. The Servicer
shall promptly submit copies of each plan of action to the Master Servicer and,
where applicable, to the respective Primary Mortgage Insurer, and/or the
respective Pool Insurer. The Servicer shall implement each plan of action in an
expeditious manner. The Servicer shall maintain monthly progress reports with
regard to each plan of action detailing the status of the related REO and the
progress achieved in implementing the plan of action.
Section 14.2 REO Servicing
14.2.1. REO Servicing Requirements. The Servicer shall service each
REO from its acquisition through its disposition and shall ensure that all funds
received with respect to such REO are deposited to the appropriate Custodial P&I
Account for remittance to the Trustee, unless the Master Servicer has relieved
the Servicer of these responsibilities by written notification.
14.2.2. Servicer's Responsibilities. In addition to any other
obligations set forth herein, upon acquisition of each REO, the Servicer shall
be responsible for:
(a) managing, maintaining, securing and, where applicable, renting
such REO until it is conveyed or sold;
(b) inspecting such REO at least once every 30 days and promptly
sending the Master Servicer an updated Property Inspection Report upon
request;
(c) paying all taxes, insurance, maintenance, management and
foreclosure costs relating to such REO;
(d) submitting recommendations for listing and soliciting offers on
such REO;
(e) marketing such REO;
(f) completing the sale of such REO;
(g) depositing sales proceeds relating to such REO into the
appropriate Custodial P&I Account for remittance to the Trustee;
(h) where applicable, satisfying all of the Primary Mortgage
Insurer's procedural requirements and filing all required forms and
claims;
(i) where applicable, depositing Primary Mortgage Insurance or Pool
Insurance proceeds relating to such REO into the applicable Custodial P&I
Account for remittance to the Trustee; and
(j) processing the conveyance of such REO to the Primary Mortgage
Insurer, where applicable.
14.2.3. [Reserved].
Section 14.3 REO Records and Reports
14.3.1. Records Retention. The Servicer shall retain in its files
copies of all documents, reports and invoices described in this Section.
14.3.2. Evidence of Title. Evidence that title to a REO is held by
the Trustee shall be submitted by the Servicer to the Master Servicer and, if
applicable, to the Primary Mortgage Insurer and/or the Pool Insurer, upon the
request of such entity.
14.3.3. REO Expenses. At the request of the Master Servicer, Primary
Mortgage Insurer and/or the Pool Insurer, the Servicer shall send a report
listing all expenses in administering each REO. The Servicer shall retain
evidence of such expenses in its records and shall, by request, (i) produce any
such evidence for inspection or (ii) at its own expense, provide copies of any
such evidence to the Master Servicer and, if applicable, to the Primary Mortgage
Insurer and/or the Pool Insurer, as directed. The foregoing expense invoices
shall include, without limitation, the following:
(a) insurance premiums;
(b) real estate tax bills;
(c) special assessments;
(d) owners' association dues;
(e) utility bills; and
(f) auction expenses.
14.3.4. REO Documents. Upon request, the Servicer shall send copies
to the Master Servicer and, where applicable, to the respective Primary Mortgage
Insurer and/or the respective Pool Insurer, of the following documents relating
to each REO:
(a) any forced placed Hazard Insurance policy or Flood Insurance
policy, if applicable;
(b) any maintenance contracts;
(c) any contractor bids relating to the rehabilitation of such REO
pursuant to Section 14.5.3 hereof;
(d) an updated Title Insurance policy which reflects the occurrence
of foreclosure; and
(e) plat map or house location survey, if already available.
Section 14.4 REO Marketing
14.4.1. REO Marketing Efforts. The Servicer shall begin efforts to
market a REO as soon as marketable title is acquired by the Trustee.
14.4.2. REO Sales. (a) The Servicer shall obtain the best market
price for a REO for the Trustee while disposing of such REO in a timely and
efficient manner. The Servicer, acting on behalf of the Trustee, shall dispose
or cooperate with the Trustee in disposing of such REO prior to the close of the
third calendar year following the year of its acquisition by the Trustee (the
"REO Disposition Period") or, if an extension has been obtained from the
Internal Revenue Service pursuant to Section 14.4.2(b), within such period. If
the Servicer is otherwise unable to sell such REO, the Servicer shall before the
end of the REO Disposition Period or, if an extension has been obtained from the
Internal Revenue Service pursuant to Section 14.4.2(b), before the end of such
period, following the acquisition of such REO, auction such REO to the highest
bidder in an auction reasonably designed to bring a fair price. The Servicer is
eligible to bid in such an auction.
(b) The Servicer may apply to the Internal Revenue Service, in the
manner contemplated by Code Section 856(e)(3), for an extension of the REO
Disposition Period with respect to an REO.
14.4.3. Primary Mortgage Insurance Considerations. The Servicer must
ensure that any action taken with respect to the sale of a REO does not
jeopardize the maximum benefits available under the related Primary Mortgage
Insurance Policy, if any, with respect to the related Mortgage Loan. The
Servicer must inform the related Primary Mortgage Insurer of any listing
agreements or purchase offers that are received before the related Primary
Mortgage Insurer has finalized the disposition of the claim.
14.4.4. Master Servicer Instructions. Where the Servicer receives
instructions from the Master Servicer regarding the marketing and sale of a REO,
either with respect to a specific property or generally, such instructions shall
govern the Servicer's actions, notwithstanding any provision herein.
14.4.5. Pool Insurance Considerations. The Servicer must ensure that
any action taken with respect to the sale of a REO does not jeopardize the
maximum benefits available under the related Pool Insurance Policy, if any, with
respect to the related Mortgage Loan. The Servicer must inform the related Pool
Insurer of any listing agreements or purchase offers that are received before
the Primary Mortgage Insurer has finalized the disposition of the claim.
Section 14.5 REO Rehabilitation
14.5.1. REO Rehabilitation Requirement. Unless the Master Servicer
shall otherwise direct, and subject to Section 3.2.2(ii) and Section 17.6.2, the
Servicer must ensure that any rehabilitation work (which shall not include the
cleaning of a recently acquired REO property) to any REO which is necessary to
restore such REO to a marketable condition is performed and that such work is
performed in a professional and workmanlike manner.
14.5.2. [Reserved].
14.5.3. Written Contractor Bids. The Servicer shall solicit detailed
written bids from independent contractors when the value of a contract for
rehabilitation of a REO exceeds five hundred dollars ($500.00) (which shall not
include the cleaning of a recently acquired REO property). Where the value of a
contract exceeds five thousand dollars ($5,000.00) (which shall not include the
cleaning of a recently acquired REO property), the Servicer shall receive bids
from a minimum of two independent and unrelated contractors and, upon request,
forward copies of such bids to the Master Servicer. Where the value of a
contract exceeds fifty thousand dollars ($50,000.00) (which shall not include
the cleaning of a recently acquired REO property), the Servicer shall receive
bids from a minimum of three independent and unrelated contractors and, upon
request, forward copies of such bids to the Master Servicer.
14.5.4. Primary Mortgage Insurance Considerations. If a Mortgaged
Property which has become a REO and the related Mortgage Loan is covered by a
policy of Primary Mortgage Insurance, the Servicer shall notify the related
Primary Mortgage Insurer of such rehabilitation plans before the completion of
the Primary Mortgage Insurance claim to ensure reimbursement from the Primary
Mortgage Insurer. If the related Primary Mortgage Insurer elects not to
reimburse all rehabilitation expenses, work should be postponed until after
final disposition of the Primary Mortgage Insurance claim.
Section 14.6 REO Administration Failure.
14.6.1. Servicer Removal. The Master Servicer may in its reasonable
discretion, in the event that the Servicer's actions or omissions result in
damage to any REO or a failure to sell any REO property within a reasonable
time, the Master Servicer may remove the servicing of such REO from the Servicer
and assume responsibility for management, control, maintenance, security,
rehabilitation and disposition of such REO.
14.6.2. Servicer's Continuing Obligations. In the event that the
Servicer is removed from servicing a REO by virtue of the provisions of Section
14.6.1, the Servicer, as to such REO, shall nevertheless remain responsible to
(a) pay when due all insurance premiums, property taxes and assessments; (b)
file when due all claims for Primary Mortgage Insurance, Pool Insurance, Hazard
Insurance and, if applicable, Flood Insurance benefits; and (c) fulfill any
other related responsibilities required by the Master Servicer.
14.6.3. Servicer's Duty to Compensate. Whether or not a Servicer is
removed from servicing with respect to a particular REO, the Servicer must
compensate the Master Servicer for any damages caused as a result of the
Servicer's breach of its obligation to service efficiently each REO. The
Servicer acknowledges that any damages suffered as a result of the Servicer's
inefficiency in managing a REO may not be quantified in advance of the Master
Servicer assuming responsibility for such REO.
ARTICLE 15
Insurance and Letter of Credit
Section 15.1 General Provisions
15.1.1. Insurance Requirements.
The Servicer must verify that each Mortgage Loan has the insurance
coverage required pursuant to Article 15 and 16. All claims arising under
Insurance Policies maintained hereunder must be settled or otherwise disposed of
by the Servicer, and all such Insurance Policies must be maintained, including,
without limitation, the payment of premiums on a timely basis, by the Servicer
at no expense to the Trustee, the Trust Administrator (if applicable) or the
Master Servicer.
If the Insurance Proceeds paid in respect of any Mortgage Loan are
not used to repair the related Mortgaged Property due to the particular
circumstances of the loss, and instead such Insurance Proceeds are applied to
reduce the Unpaid Principal Balance of such Mortgage Loan and such application
causes the Unpaid Principal Balance of such Mortgage Loan to reduce to zero, the
Servicer must treat the application of such proceeds as a Liquidation, and
notify the Master Servicer of such Liquidation.
15.1.2. Uninsured Losses. The Servicer must take the following
actions in the event of loss or damage to any Mortgaged Property caused by an
earthquake, flood, tornado or other natural disaster immediately following, the
earlier to occur of (x) its notification or discovery of such loss or damage or
(y) the time at which the Servicer reasonably should have known of such loss or
damage in the exercise of Prudent Servicing Practices:
(a) determine the extent of the losses or damages;
(b) secure any abandoned Mortgaged Property from vandalism and the
elements;
(c) communicate with and counsel the respective Borrower on any
disaster relief programs or other assistance which is available; and
(d) take appropriate action to protect the interests of the Trustee
and the respective Borrower.
15.1.3. Servicer's Obligation to Maintain Insurance. If the Servicer
discovers that a Borrower does not have adequate insurance coverage as required
pursuant to the provisions of this Article, the Servicer must obtain and
maintain at its own expense the required insurance coverage on the related
Mortgaged Property. The Servicer may, in its discretion, cause the required
coverage to be maintained through a blanket insurance policy. Such expenses
shall not be recoverable by the Servicer from the Master Servicer or from
payments on the Mortgage Loan or any other source relating to the related
Mortgage Loan or the related Mortgaged Property, other than from Liquidation
Proceeds or Insurance Proceeds from the related Mortgage Loan. The Servicer
shall pay any deductible under such blanket policy without reimbursement from
the Trust. To the extent permitted by applicable law and the related Mortgage
Loan Documents, the Servicer may initiate forced placed coverage with respect to
such Mortgaged Property and thereafter attempt to recover such expenses from the
related Borrower.
15.1.4. Insurance Notices. The Servicer must arrange for all
insurance drafts, notices, policies, invoices, or other correspondence to be
delivered directly to the Servicer. The Servicer, its successors and assigns
must be named as the Mortgagee, the endorsement must show the Servicer's address
as shown in the following example:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxx Xxxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
15.1.5. Default by Insurer. If the Servicer knows or has reasonable
cause to suspect that an insurer under any applicable insurance policy required
pursuant to the provisions of this Article will, for any reason, be unable to
pay a valid claim, the Servicer shall immediately (i) find a substitute insurer
and (ii) pay any premiums to the insurer. In any case, the Servicer shall not be
liable in any way for the financial inability of any insurer under any insurance
policy required herein to pay a valid claim so long as the provisions of Article
15 and 16 hereof are complied with.
15.1.6. Insurance Carrier Rating. Each Insurance Policy must be
underwritten by an insurance carrier that is a FNMA or FHLMC approved Mortgage
Insurer.
15.1.7. Insurance Carrier Licenses. Each insurance carrier must be
licensed or otherwise authorized by law to conduct business in each state in
which a related Mortgaged Property is located.
15.1.8. Risk Exposure. If any Mortgaged Property is exposed to
hazards not fully covered by Hazard Insurance or Flood Insurance, the Servicer
must notify the Master Servicer immediately with a recommendation for additional
coverage.
15.1.9. Evidence of Insurance. (a) The Servicer must maintain the
following documentation with respect to insurance coverage on each Mortgage
Loan:
(i) if Primary Mortgage Insurance is required, a copy of the
Primary Mortgage Insurance policy and any related
endorsements;
(ii) for one- to four-unit dwellings where such coverage is not
provided under a blanket policy maintained by the Servicer,
an original of the Hazard Insurance policy, if applicable,
and any related endorsements;
(iii) a copy of the Title Insurance policy and any related
endorsements, unless a Final Title Condition Report was
obtained;
(iv) For properties covered under a blanket policy, an original of
any blanket policy, and any related endorsements; and
(v) an original of any Flood Insurance policy, if Flood Insurance
is required, and any related endorsements.
(b) A certificate of insurance is acceptable in lieu of any of the
foregoing policies if it contains the following information:
(i) named insured and Mortgagee or, for PUD or Condominium Units,
named insured association, unit owner and unit owner
Mortgagee;
(ii) address of the Mortgaged Property;
(iii) type, amount and effective dates of coverage;
(iv) deductible amount;
(v) any endorsement or optional coverage obtained and made part
of the original policy;
(vi) insurer's agreement to provide at least ten day's prior
written notice to the Servicer and Borrower (or applicable
unit owner Mortgagee if for a PUD or Condominium Unit) before
any reduction in coverage or cancellation of the policy; and
(vii) signature of an authorized representative of the insurer, if
required by applicable law.
Section 15.2 Primary Mortgage Insurance
15.2.1. Primary Mortgage Insurance Requirement. Unless Primary
Mortgage Insurance coverage with respect to a Mortgage Loan is canceled as
provided in Section 15.2.4 herein, the Servicer must maintain at all times
Primary Mortgage Insurance on any Mortgage Loan with an original LTV ratio in
excess of 80%.
15.2.2. Primary Mortgage Insurance Coverage. As to each Mortgage
Loan which is required to have Primary Mortgage Insurance, pursuant to this
Agreement or the related Mortgage Loan Documents, Primary Mortgage Insurance
must at least provide coverage which insures against loss of that portion of the
Unpaid Principal Balance of the Mortgage Loan that exceeds 75% of the Value of
the Mortgaged Property. If the Mortgage Loan provides for negative amortization
or for the potential of negative amortization, the Primary Mortgage Insurance
policy must also insure any increase in the Unpaid Principal Balance from the
original principal balance of the related Mortgage Note.
15.2.3. Primary Mortgage Insurer Downgrading. In the event that the
rating assigned by a Rating Agency to the claims paying ability of any Primary
Mortgage Insurer is reduced below the level permitted under Section 15.1.6, the
Servicer shall use its best efforts to replace each Primary Mortgage Insurance
Policy issued by such Primary Mortgage Insurer with a new Primary Mortgage
Insurance policy issued by an insurer whose claims paying ability is acceptable
to the Master Servicer. The premium for any replacement Primary Mortgage
Insurance policy shall not exceed the premium for the discontinued Primary
Mortgage Insurance policy.
15.2.4. Primary Mortgage Insurance Cancellation. If a Borrower
requests cancellation of the Primary Mortgage Insurance policy with respect to
his Mortgaged Property, the following requirements must be met:
(a) The current LTV ratio must be 80% or less. The current LTV ratio
must be calculated by dividing the Unpaid Principal Balance of the related
Mortgage Loan by the Current Value of the Mortgaged Property;
(b) The related Mortgage Loan may not have been 30 days or more
delinquent within the preceding twelve months; and
(c) There may not have been any other default under the terms of the
related Mortgage Loan at any time during the preceding twelve months.
If there are indications that the Current Value of the Mortgaged Property
has declined, the Servicer shall obtain an Appraisal Report with respect
to such Mortgaged Property that is not more than 60 days old. The Current
Value of such Mortgaged Property set forth the Appraisal Report shall be
used as the divisor in clause (a) hereof to determine whether the
recalculated current LTV is 80% or less. If the recalculated current LTV
is greater, the Primary Mortgage Insurance cancellation request will be
denied.
15.2.5. Primary Mortgage Insurance Claims. The Servicer must take
all steps to ensure the payment of the maximum benefits payable under the terms
of any Primary Mortgage Insurance policy. The Servicer must work diligently with
each Primary Mortgage Insurer to determine whether such insurer will settle the
claim by taking title to the Mortgaged Property in question or in some other
manner. Upon receipt of any Primary Mortgage Insurance proceeds, the Servicer
must deposit such amounts in the appropriate Custodial P&I Account. The Servicer
shall promptly notify the Master Servicer in writing if any Primary Mortgage
Insurer at any time denies any or all of a claim filed under its Primary
Mortgage Insurance policy.
Section 15.3 Hazard Insurance
15.3.1. Hazard Insurance Requirement. Unless alternative coverage is
provided pursuant to Section 16.3 hereunder, the Servicer must ensure that each
Mortgaged Property is covered at all times by Hazard Insurance.
15.3.2. Hazard Insurance Coverage. As to each Mortgaged Property,
the amount of Hazard Insurance must be at least equal to the lesser of (a) the
Unpaid Principal Balance of the related Mortgage Loan or (b) 100% of the
insurable value of the improvements on the Mortgaged Property; provided,
however, that in no case shall the amount of Hazard Insurance be less than the
amount required to fully compensate for any damage to the improvements on the
Mortgaged Property on a replacement cost basis.
15.3.3. Hazard Insurance Deductible. Except as a greater amount may
be required by an applicable law, each Hazard Insurance deductible may not
exceed FNMA or FHLMC's required deductible.
15.3.4. Hazard Insurance Vacancy Coverage. The Servicer must ensure
that each Mortgaged Property is adequately covered even when vacant and, where
available, must obtain a vacancy permit endorsement.
15.3.5. Hazard Insurance Mortgagee Provisions. Each Hazard Insurance
Policy must contain or have attached a standard mortgagee clause in the form
customarily used by or required by private institutional mortgage loan
investors. Such clause must provide that the Hazard Insurance carrier shall
notify the named Mortgagee at least ten days before any reduction in coverage or
cancellation of the policy. All mortgagee clauses must be properly endorsed,
necessary notices of transfer must be given and any other action must be taken
that is necessary in order to protect the interests of the Trustee, its
successors and/or assigns. The standard mortgagee clause should read as follows:
"Insuring Xxxxx Fargo Bank, N.A., as agent for HSBC Bank USA, National
Association, its successors and/or assigns."
Section 15.4 Flood Insurance
15.4.1. Flood Insurance Requirement. Unless alternate coverage is
provided pursuant to Section 16.6 hereunder, the Servicer must ensure that Flood
Insurance is maintained at all times on Mortgaged Property that are in a special
flood hazard area identified by the Secretary of HUD or the Director of the
Federal Emergency Management Agency.
15.4.2. Flood Insurance Coverage. As to each Mortgaged Property, the
amount of Flood Insurance must be at least equal to the least of (a) the maximum
amount available under the National Flood Insurance Program's regular program or
its emergency program, (b) the Unpaid Principal Balance of the related Mortgage
Loan or (c) 100% of the replacement cost of the improvements on the Mortgaged
Property.
15.4.3. Flood Insurance Deductible. Except as a greater amount may
be required by applicable law, each Flood Insurance deductible may not exceed
the lesser of (a) $1,000 or (b) one percent of the applicable amount of
coverage.
Section 15.5 Title Insurance
15.5.1. Servicer's Obligations. The Servicer shall perform and
comply with all requirements and conditions of each Title Insurance policy for
each Mortgage Loan and the related Mortgaged Property that are to be performed
or observed by the "Insured" or obligee thereunder as a condition to maintaining
and keeping it in force, or making a claim under, such Title Insurance policy.
The Servicer shall be named as a payee on all Title Insurance policy loss
drafts, and upon receipt thereof, the funds shall be credited to the extent of
the sum of (i) the Unpaid Principal Balance of such Mortgage Loan and any
interest accrued thereon, (ii) any outstanding advances thereon (iii) any
outstanding Advances relating to such Mortgage Loans and (iv) any expenses owed
by such Borrower which are due the Trustee, the Master Servicer or the Servicer,
whether for its own account or others, to the appropriate Custodial P&I Account
and the balance of such funds, if any, shall be credited to the appropriate
Custodial T&I Account.
15.5.2. Policy Custody. [Reserved]
15.5.3. Title Insurance Claims. The Master Servicer must be notified
contemporaneously with the making of any claim under the Title Insurance policy.
Section 15.6 Insurance Loss Settlements
15.6.1. Settlement Approval. The approval of the Master Servicer
need not be requested for disposition of insurance loss settlements and the
Servicer may disburse the loss proceeds as provided herein.
15.6.2. Settlement Disbursements. For each Mortgage Loan, including
a Mortgage Loan secured by Mortgaged Property located in a Condominium Project
or PUD, the Servicer is fully responsible for the disbursement of insurance loss
settlements under each Hazard Insurance policy and each Flood Insurance policy
where property damage is $10,000 or more, including but not limited to:
(a) arranging for and authorizing the restoration and rehabilitation
of the related damaged Mortgaged Property in cooperation with the
Borrower;
(b) subject to applicable law, applying the Insurance Proceeds to
reduction of the Unpaid Principal Balance of such Mortgage Loan, provided
that the Servicer (i) shall have determined that such proceeds are
insufficient to repair and restore the related Mortgaged Property, or that
the repair and restoration of such Mortgaged Property is not feasible; and
(ii) shall have obtained authorization of the Master Servicer to make such
application of the Insurance Proceeds;
(c) collecting, endorsing and disbursing the Insurance Proceeds and
arranging for progress inspections and payments, if necessary;
(d) complying with all requirements of any Primary Mortgage
Insurance policy pertaining to the filing of claims and the settlement of
insurance losses to assure that the security of such Mortgage Loan is not
impaired and that the coverage of such Primary Mortgage Insurance policy
is not jeopardized or otherwise adversely affected;
(e) assuring, through the receipt of Borrower's affidavits, repair
contract copies, lien waivers and the like, that the priority of the lien
of the Security Instrument is preserved, and that the Insurance Proceeds
are applied to the restoration or repair of the related Mortgaged Property
if not applied in payment of such Mortgage Loan;
(f) obtain releases or waivers of liens and taking such other
actions as are necessary to avoid the filing of laborers', materialmen's
or mechanic's liens against the related Mortgaged Property; and
(g) maintaining procedures and practices acceptable to the Master
Servicer and in conformity with Prudent Servicing Practices for the
control and disposition of insurance loss drafts.
15.6.3. Settlement Funds. The Servicer shall be named as a payee on
all insurance loss drafts and upon receipt thereof, the funds shall be credited
to the Borrower's Insurance Proceeds balance and deposited into (a) where such
funds will be applied to the repair and restoration of the related Mortgaged
Property and where required by applicable state law, one or more separate escrow
accounts, so that the balance on deposit in such accounts is fully insured at
all times by the FDIC through either the BIF or SAIF or (b) where such funds
will not be applied to the repair and restoration of the related Mortgaged
Property, the respective Custodial P&I Account.
15.6.4. Settlement Notice. Upon written request received from the
Master Servicer, the Servicer shall provide any report relating to such
settlement to the Master Servicer on a Hazard Insurance Loss Draft Notification,
together with a summary of the disposition of the proceeds.
15.6.5. Continuing Coverage. If a letter of assurance is obtained
from any insurer under a Hazard Insurance policy or a Flood Insurance policy
that the insurance coverage shall continue in full force and effect, the
Servicer shall deposit such letter in the appropriate Servicer Mortgage Loan
File.
15.6.6. Property Inspections. The Servicer shall conduct property
inspections in accordance with the milestones of the repair and rehabilitation
plan for such Mortgaged Property and prepare Property Inspection Reports on any
Mortgaged Property involving property damage over $15,000. The Servicer shall
furnish a copy of the repair and rehabilitation plan for such Mortgaged Property
to the Master Servicer upon request.
Section 15.7 Letters of Credit
15.7.1. Letter of Credit Draws. The Servicer shall take all steps
necessary to make draws under any Letter of Credit in accordance with the
provisions thereof. The Servicer shall notify the Master Servicer promptly in
writing if the Pledge Holder does not renew a Letter of Credit. Upon receipt of
any amounts as a result of a draw on a Letter of Credit because of the
nonrenewal of such Letter of Credit, the Servicer shall deposit such amounts in
the appropriate Custodial P&I Account and such amount shall be treated as a
prepayment of principal. Upon receipt of any amounts as a result of a draw on a
Letter of Credit for a reason other than the nonrenewal of such Letter of
Credit, the Servicer shall deposit such amounts in the appropriate Custodial P&I
Account for application in accordance with the provisions of the applicable
Administration Disclosure.
15.7.2. Draws in the Event of Servicer Termination. Notwithstanding
anything to the contrary in this Agreement (including without limitation the
termination or transfer of the servicing rights and/or obligations of the
Servicer pursuant to Article 19 hereof), Xxxxx Fargo Bank, as beneficiary under
the Non-Assigned Letters of Credit, shall continue to make draws thereunder in
accordance with the provisions thereof. Under this provision, in the event a
Pledged Asset Mortgage Loan is ninety days delinquent, the Servicer shall
deliver a copy of the related Letter of Credit to Xxxxx Fargo Bank and shall
notify both the Master Servicer and Xxxxx Fargo Bank that the Pledged Asset
Mortgage Loan is ninety days delinquent. Any funds received from draws on the
Non-Assigned Letters of Credit after Xxxxx Fargo Bank is no longer the Servicer
hereunder shall be remitted by Xxxxx Fargo Bank to the Servicer for deposit into
the related Custodial P&I Account. Under this provision, in the event a Pledged
Asset Mortgage Loan is liquidated or paid in full the Master Servicer shall
notify Xxxxx Fargo Bank in writing.
ARTICLE 16
Condominium and PUD Insurance
Section 16.1 General Provisions
16.1.1. Applicability. The provisions of this Article pertain solely
to Mortgage Loans secured by Condominium Units or PUD Units.
16.1.2. Premiums. The premiums for insurance policies required
pursuant to this Article must be paid as a common expense by the Owners'
Association.
16.1.3. Deductible Reserves. Funds for each of the deductibles
associated with the insurance policies required pursuant to this Article must be
included in the Owners' Association's reserves and must be so designated.
16.1.4. Name of Insured. The name of the insured stated under each
Insurance Policy required pursuant to the provisions of this Article must be
similar in form and substance to the following:
"Association of Owners of the [Name of Condominium Project or PUD]
for use and benefit of the individual Condominium or PUD Unit
owners" (designated by name, if required).
16.1.5. Mortgagee Clause. Each insurance policy required pursuant to
the provisions of this Article must contain the standard mortgagee clause
endorsed to provide that any disbursements shall be paid to the Owners'
Association for the use and benefit of Mortgagees as their interests may appear,
or otherwise endorsed to fully protect the interest of (a) the Trustee and (b)
the holders of a beneficial interest therein, if any.
16.1.6. Reconstruction Coverage. If, with respect to a PUD or
Condominium Project in which a Mortgaged Property is located, there is a
construction code provision that would require changes to undamaged portions of
the PUD or Condominium Project's building(s) even when only part of a building
is destroyed by an insured hazard, then the Servicer must ensure that each
insurance policy required by this Article contains the necessary construction
code endorsements to cover this exposure.
Xxxxxxx 00.0 Xxxxxx Xxxx Multiple Peril Insurance
16.2.1. Common Area Multiple Peril Insurance Requirement. The
Servicer must ensure that the Owner's Association maintains, with respect to the
PUD or Condominium Project in which a Mortgaged Property is located, a policy of
Common Area Multiple Peril Insurance, with premiums being paid as a common
expense. The Common Area Multiple Peril Insurance policy must at least protect
against loss or damage by fire and all other hazards that are normally covered
by the standard extended coverage endorsement, and all of the perils customarily
covered for similar types of projects, including those covered by the standard
"all risk" endorsement.
16.2.2. Common Area Multiple Peril Insurance Coverage. As to each
Condominium Project or PUD in which a Mortgaged Property is located, a Common
Area Multiple Peril Insurance policy must cover 100% of the current replacement
cost of all of the common areas (other than the land and foundation), common
elements including fixtures and building service equipment, as well as common
personal property and supplies.
16.2.3. Common Area Multiple Peril Insurance Deductible. Except as a
greater amount may be required by applicable law, each Common Area Multiple
Peril Insurance deductible may not exceed the lesser of (a) $10,000 or (b) one
percent of the applicable amount of coverage.
16.2.4. Boiler and Machinery Coverage. If a steam boiler is
operating within the Condominium Project or PUD in which a Mortgaged Property is
located, then the Servicer must ensure that boiler and machinery coverage is in
force at all times. This coverage must be evidenced by the standard form of
boiler and machinery endorsement. The minimum liability coverage per accident
under boiler and machinery coverage must equal the insurable value of the boiler
and equipment and the building housing such boiler or machinery, based upon
current replacement cost, or $2 million, whichever is less.
Section 16.3 Blanket Hazard Insurance
16.3.1. Blanket Hazard Insurance Requirement. Unless alternative
coverage is provided pursuant to Section 16.3 hereunder, the Servicer must
verify that each such Mortgaged Property is covered at all times by Hazard
Insurance policy which provides blanket coverage for the individual units in the
Condominium Project or PUD.
16.3.2. Blanket Hazard Insurance Coverage. As to each Condominium
Project or PUD which contains a Mortgaged Property for which its Hazard
Insurance coverage is provided through a blanket policy, the amount of Hazard
Insurance for a blanket policy a Condominium Project or PUD must be at least
equal to the lesser of (a) the aggregate of the outstanding principal balances
of all mortgage notes secured by units within the Condominium Project or PUD
(including the Mortgage Notes secured by Mortgaged Properties) or (b) 100% of
the replacement cost of the improvements on the Condominium Project or PUD Unit
site.
16.3.3. Blanket Hazard Insurance Deductible. Except as a greater
amount may be required by an applicable law, each Hazard Insurance deductible
for a blanket policy covering a Condominium Project or PUD may not exceed the
lesser of (a) $10,000 or (b) one percent of the applicable amount of coverage.
Section 16.4 Common Area Comprehensive General Liability (CGL)
Insurance
16.4.1. Common Area CGL Insurance Requirement. The Servicer must
ensure that the Owners' Association maintains a Comprehensive General Liability
Insurance policy covering all of the common areas, common elements, commercial
spaces and public ways in the Condominium Project or PUD in which a Mortgaged
Property is located.
16.4.2. Common Area CGL Insurance Coverage. As to each Condominium
Project or PUD in which a Mortgaged Property is located, a CGL Insurance policy
should provide coverage of at least $1,000,000 for personal injury, bodily
injury or property damage for any single occurrence. Each CGL Insurance policy
must contain a severability of interest endorsement preventing the insurer from
denying the claim of a Condominium or PUD Unit owner because of negligent acts
of the Owners' Association or other unit owners. Each CGL Insurance policy must
include all other types of coverage and endorsements in the types and amounts
required by private institutional mortgage loan investors for developments
similar in construction, location and use.
Section 16.5 Owners' Association Fidelity Insurance
16.5.1. Owners' Association Fidelity Insurance Requirement. The
Servicer must ensure that the Owners' Association maintains a fidelity bond or
insurance against dishonest and fraudulent acts on the part of directors,
managers, trustees, employees or volunteers responsible for handling funds
belonging to or administered by the association.
16.5.2. Owners' Association Fidelity Insurance Coverage. The Owners'
Association fidelity bond or insurance must name the Owners' Association as the
insured and must be written in an amount sufficient to provide protection at
least 150% of the insured's estimated annual operating expenses and reserves. An
appropriate endorsement to the policy to cover any persons who serve without
remuneration must be added if the policy would not otherwise cover volunteers.
Owners' Association fidelity insurance coverage must be in an amount equal to at
least 3 months assessments on all units in the Condominium Project or PUD.
Owners' Association fidelity insurance coverage is not required if the
Condominium Project or the PUD have fewer than 20 units.
Section 16.6 Blanket Flood Insurance
16.6.1. Blanket Flood Insurance Requirement. Where a Mortgaged
Property is a Condominium Unit or PUD Unit and is not individually covered by a
Flood Insurance policy in accordance with the provisions of Section 15.4 hereof,
the Servicer must verify that a Flood Insurance policy which provides blanket
coverage for the individual units in the Condominium Project or PUD, is
maintained at all times on Mortgaged Property that are in a special flood hazard
area identified by the Secretary of HUD or the Director of the Federal Emergency
Management Agency.
16.6.2. Blanket Flood Insurance Coverage. As to each Condominium
Project or PUD which contains a Mortgaged Property for which its Flood Hazard
Insurance coverage is provided through a blanket policy, the amount of Flood
Insurance must be at least equal to the least of (a) the maximum amount
available under the National Flood Insurance Program's regular program or the
its emergency program, (b) the aggregate of the outstanding principal balances
of all mortgage notes secured by units within the Condominium Project or PUD
(including the Mortgage Notes secured by Mortgaged Properties), or (c) 100% of
the replacement cost of the improvements on the Condominium Project or PUD Unit
site.
16.6.3. Blanket Flood Insurance Deductible. Except as a greater
amount may be required by applicable law, each Flood Insurance deductible for a
blanket policy covering a Condominium Project or PUD may not exceed the lesser
of (a) $5,000 or (b) one percent of the applicable amount of coverage.
ARTICLE 17
Advances
Section 17.1 Principal and Interest Advances
17.1.1. P&I Advance Requirement. The Servicer shall advance P&I
Advances by depositing to the respective Custodial P&I Account on or before each
Remittance Date an amount equal to the aggregate of the difference between (a)
the Monthly Payment that each Borrower was required to pay to the Servicer on
the immediately preceding Due Date (excluding the amount of the related
Servicing Fee) and (b) the amount actually received with respect to the related
Monthly Payment by the Servicer (excluding the amount of the related Servicing
Fee), which deposit may be made in whole or in part from any Amounts Held for
Future Distribution. For purposes of the preceding sentence, the Monthly Payment
on each Balloon Loan with a delinquent Balloon Amount is equal to the assumed
monthly payment that would have been due on the related Due Date based on the
original principal amortization schedule for such Balloon Loan. Any Amount Held
for Future Distribution so used shall be replaced by the Servicer from its own
funds by deposit in the Custodial P&I Account on or before the Business Day
preceding any future Remittance Date to the extent that funds in the Custodial
P&I Account on such Remittance Date shall be less than the amount required to be
remitted on such date
The Servicer shall designate on its records the specific Mortgage Loans and
related installments (or portions thereof) as to which such P&I Advance shall be
deemed to have been made, such determination and related reimbursement
allocations pursuant to the following paragraphs being conclusive for purposes
of Section 17.1.3.
The Servicer shall have no obligation to make any P&I Advances as to any
Mortgage Loan with respect to shortfalls relating to the Servicemembers Civil
Relief Act or similar state and local laws.
17.1.2. P&I Advance Limitation. The Servicer is required to make P&I
Advances with respect to a Mortgage Loan unless a P&I Advance is reasonably
determined by the Servicer to be eventually non-recoverable from any Insurance
Proceeds, Liquidation Proceeds, or the Borrower.
17.1.3. P&I Advance Recovery. The Servicer's P&I Advance shall be
recoverable from subsequent Borrower Monthly Payments, Insurance Proceeds,
Liquidation Proceeds related to the Mortgage Loan as to which such P&I Advance
was made or, if the Representing Party is obligated to purchase such Mortgage
Loan from the Trustee, from the price paid for such Mortgage Loan or pursuant to
Section 17.4.
17.1.4. Advance During Bankruptcy and Foreclosure. During
litigation, bankruptcy proceedings or foreclosure proceedings pertaining to any
Mortgage Loan or while REO transferred to the Trustee through foreclosure or a
deed-in-lieu of foreclosure is held by the Trustee or its successors, the
Servicer must continue to make monthly P&I Advances in respect of each such
Mortgage Loan or REO to the respective Custodial P&I Account. Subject to the
provisions of Section 17.1.2 hereof, these P&I Advances must be made until the
(i) Liquidation of each Mortgage Loan subject to such proceedings or (ii) in the
case of REO transferred to the Trustee through foreclosure or a deed-in-lieu of
foreclosure, the Liquidation of such REO. Advances with respect to REO shall be
made as if the related Mortgage Loan and Mortgage Note remained in effect.
Section 17.2 Foreclosure Advances
17.2.1. Foreclosure Advance Requirement. During foreclosure
proceedings, the Servicer must advance from its own funds all foreclosure
expenses as they occur in accordance with the terms of this Agreement. Such
advances must be made by the Servicer up to the time of final disposition of the
related Mortgaged Property.
17.2.2. Foreclosure Advance Limitation. The Servicer is required to
make advances pursuant to Section 17.2.1 with respect to a Mortgage Loan unless
the Servicer reasonably determines (i) that such foreclosure will not increase
the proceeds to the Trustee of liquidation of such Mortgage Loan after
reimbursement of the Servicer for its expenses or (ii) that such expenses will
be eventually non-recoverable from any Insurance Proceeds, Liquidation Proceeds
or the Borrower.
17.2.3. Foreclosure Advance Recovery. If foreclosure proceedings are
terminated, the Servicer must collect all legal fees and costs from the
Borrower. Otherwise, the Servicer's advances for reasonable foreclosure expenses
shall be recoverable from Insurance Proceeds, Liquidation Proceeds or, if the
Representing Party is obligated to purchase a Mortgage Loan from the Trustee,
from the price paid for such Mortgage Loan.
17.2.4. Foreclosure Advance Records. All foreclosure advances by the
Servicer and reimbursements to the Servicer must be clearly identifiable in the
respective Custodial T & I Account.
Section 17.3 Tax & Insurance Advances
17.3.1. T&I Advance Requirement. If a Borrower's Escrow Funds are
insufficient to pay taxes or insurance premiums, the Servicer must advance from
its own funds to the respective Custodial T&I Account an amount sufficient to
cover the shortage and so as to assure the maintenance of a first lien position
of the related Security Instrument on the related Mortgaged Property.
17.3.2. T&I Advance Recovery. T&I Advances may be recovered from the
Borrower's subsequent monthly escrow payments, Insurance Proceeds, Liquidation
Proceeds or the Borrower, but must never be recovered from scheduled principal
or interest collections. The Servicer may not recover T&I Advances from another
Borrower's Escrow Funds.
17.3.3. T&I Advance Limitation. The Servicer is required to make a
T&I Advance with respect to a Mortgage Loan unless such T&I Advance is
reasonably determined by the Servicer to be eventually non-recoverable from any
Insurance Proceeds, Liquidation Proceeds, or the Borrower.
17.3.4. Advance During Bankruptcy and Foreclosure. During
litigation, bankruptcy proceedings or foreclosure proceedings pertaining to any
Mortgage Loan or while REO transferred to the Trustee through foreclosure or a
deed-in-lieu of foreclosure is held by the Trustee, the Servicer must continue
to make required T&I Advances in respect of each such Mortgage Loan or REO to
the respective Custodial T&I Account. These T&I Advances must be made until each
Mortgage Loan subject to such proceedings is liquidated or in the case of REO
transferred to the Trustee through foreclosure or a deed-in-lieu of foreclosure
is liquidated. Advances with respect to REO shall be made as if the related
Mortgage Loan and Mortgage Note remained in effect.
Section 17.4 Non-Recoverable Advances
17.4.1. Ordinary Recovery. If at any time an Advance made by a
Servicer hereunder is determined by the Servicer to be a Non-Recoverable
Advance, then the Servicer shall be entitled to be reimbursed for such advance
by withdrawing from the Custodial P&I Account an amount equal to the
Non-Recoverable Advance. An Advance in respect of principal and/or interest (or
other amounts) which are subsequently forgiven as a Servicer Modification shall
be deemed a Non-Recoverable Advance. The Servicer shall provide the Master
Servicer with an Officer's Certificate upon the determination that any Advance
is a Non-Recoverable Advance.
17.4.2. Final Recovery. If the amounts on deposit in the related
Custodial P&I Account are insufficient to reimburse the Servicer, then prior to
any distribution to the Trustee, the Servicer shall be entitled to reimbursement
from the payments made and the proceeds received with respect to such Mortgage
Loan.
Section 17.5 Failure to Advance
17.5.1. Grounds for Termination. The failure of the Servicer to
advance any funds required to be advanced by the Servicer under this Article 17
is cause for termination of Servicer under this Agreement.
17.5.2. Servicer Reimbursement. To the extent the Master Servicer or
the respective trustee, if any, must advance their respective funds due to the
failure of the Servicer to advance as provided for in this Agreement or to remit
funds to the Certificate Account as required by Section 18.3.1, the Servicer
shall reimburse the advancing party for such amounts, on demand, together with
all costs and expenses incurred by the advancing party, including, but not
limited to, interest on the funds advanced. Such interest shall be calculated at
the lesser of the "prime rate" (as set forth in The Wall Street Journal) and the
maximum interest rate permitted by law.
17.5.3. Servicer Notification. The Servicer must notify the Master
Servicer of any failure of the Servicer to advance as provided for in this
Agreement or to remit funds to the Certificate Account as required by Section
18.3.1 on the day of such failure to advance or remit.
Section 17.6 Rehabilitation Advance
17.6.1. Rehabilitation Advance Requirement. The Servicer must
advance from its own funds such amounts as are necessary to restore any damaged
REO not covered by Hazard Insurance or Special Hazard Insurance in accordance
with Section 14.5.
17.6.2. Rehabilitation Advance Limitation. The Servicer is required
to make advances pursuant to Sections 17.6.1 and 14.5 with respect to a Mortgage
Loan unless the Servicer reasonably determines (i) that such rehabilitation will
not increase the proceeds to the Trustee on liquidation of such Mortgage Loan
after reimbursement of the Servicer for its expenses or (ii) that such expenses
will be eventually non-recoverable from any Insurance Proceeds, Liquidation
Proceeds or the Borrower.
17.6.3. Rehabilitation Advance Recovery. The Servicer's advances for
reasonable rehabilitation expenses shall be recoverable from Insurance Proceeds,
Liquidation Proceeds, or, if the Representing Party is obligated to purchase a
Mortgage Loan from the Trustee, from the price paid for such Mortgage Loan.
Section 17.7 PMI Advances
17.7.1. PMI Advance Option. In the event that the Servicer has
recovered all Liquidation Proceeds with respect to a Mortgage Loan other than
any amounts as to which a Primary Mortgage Insurance claim has been made, the
Servicer shall have the option, but not the obligation, to advance the amount of
such claim (a "PMI Advance").
17.7.2. PMI Advance Recovery. The Servicer's PMI Advance shall be
recoverable from the related Primary Mortgage Insurance proceeds; provided,
however that if such PMI Advance or a portion thereof is eventually determined
to be a Non-Recoverable Advance, the Servicer shall be entitled to reimbursement
pursuant to Section 17.4. Notwithstanding the foregoing, the Servicer shall not
be entitled to reimbursement for a PMI Advance if the amount is not recoverable
from the related Primary Mortgage Insurance proceeds as a result of an action by
the Servicer which violates Section 4.4.2.
Section 17.8 Credit Counseling Fee Advances
17.8.1. Credit Counseling Fee Advance Option. The Servicer shall
have the option, but not the obligation, to make a Credit Counseling Fee Advance
with respect to any Mortgage Loan.
17.8.2. Credit Counseling Fee Advance Recovery. The Servicer's
Credit Counseling Fee Advance shall be recoverable from subsequent Borrower
Monthly Payments, Insurance Proceeds or Liquidation Proceeds related to the
Mortgage Loan or, if the Servicer determines that all or part of a Credit
Counseling Fee Advance has become a Non-Recoverable Advance, pursuant to Section
17.4.
Section 17.9 Servicing Advances
17.9.1. Servicing Advance Recovery. Servicing Advances shall be
recoverable from subsequent Borrower Monthly Payments, Insurance Proceeds or
Liquidation Proceeds related to the Mortgage Loan or, if the Servicer determines
that all or part of a Servicing Advance has become a Non-Recoverable Advance,
pursuant to Section 17.4.
ARTICLE 18
Reporting Requirements
Section 18.1 Monthly Accounting Reports
18.1.1. Monthly Accounting Report Requirement. With respect to any
Remittance Date, the period for monthly accounting reports shall be from the
first Business Day of the prior month through the last Business Day of the prior
month, provided that (I) the reporting period for Prepayments in Full,
Curtailments and Partial Liquidation Proceeds shall be from the Determination
Date in the month of such Remittance Date, and (ii) such report shall include
only (a) Monthly Payments received by the Servicer by the close of business on
the Business Day preceding the Determination Date in the month of such
Remittance Date which relate to the Due Date in such month, or in prior months
to the extent not previously remitted and reported, and (b) any P&I Advances
made in respect of such Monthly Payments. With respect to Type 2 Mortgage Loans,
all monthly reports prepared by the Servicer must be complete and must be
received by the Master Servicer by the tenth calendar day of the following
month. With respect to Type 1 Mortgage Loans, all monthly reports prepared by
the Servicer must be complete and must be received by the Master Servicer no
later than the 21st calendar day of the following month. All monthly accounting
reports must show information in, and must be submitted in, a sequence according
to Servicer Loan Number order.
18.1.2. Monthly Accounting Report Elements. The Servicer shall
forward to the Master Servicer a Monthly Accounting Report (or in such other
format mutually agreed upon by the Servicer and the Master Servicer) setting
forth substantially the information required by FNMA Form 2010.
The Servicer must also complete and forward to the Master Servicer
any other form or report as provided for in this Agreement, or as reasonably
requested by the Master Servicer, including information with respect to modified
Mortgage Loans.
18.1.3. Automated Reports. The Servicer may submit to the Master
Servicer for review the Servicer's automated reports which include all of the
information required by the provisions of Section 18.1.2 hereof. Upon approval
by the Master Servicer, the Servicer may submit approved automated reports to
the Master Servicer instead of the Forms listed in Section 18.1.2 hereof.
18.1.4. Electronic Reporting. With the prior written consent of the
Master Servicer, all reports to be made by the Servicer to the Master Servicer
may be transmitted electronically in lieu of written reporting. If the Servicer
services more than one hundred Mortgage Loans for the Master Servicer, it shall
arrange for electronic transmission of the required reports. Any expenses
occasioned by the electronic transmission of reports shall be borne by the
Servicer.
18.1.5. Machine Readable Records. At the request of the Master
Servicer, the Servicer shall provide to the Master Servicer, in a mutually
agreed machine readable format, the current names and mailing addresses of each
Borrower. The Master Servicer shall utilize such information solely for audit
purposes, or in the event the Servicer is terminated hereunder.
Section 18.2 Account Reconciliations
18.2.1. Reconciliation Preparation. The Servicer shall prepare
reconciliations for each Custodial P&I Account, Custodial T&I Account and
Custodial Buydown Account on a monthly basis and shall forward the same to the
Master Servicer upon request.
18.2.2. Account Records. Upon request of the Master Servicer, the
Servicer shall also cause the depository for each of the accounts described in
Section 18.2.1 hereof to forward directly to the Master Servicer, copies of all
monthly account statements for the preceding monthly reporting period.
Section 18.3 Monthly Remittance Requirements
18.3.1. Remittance of Funds. On each Remittance Date the Servicer
shall transfer, to the extent not previously transferred as required pursuant to
Section 6.1.3(e), from the funds in (or required hereunder to be in) the
respective Custodial P&I Account as of the close of the Business Day immediately
preceding the Determination Date in the month of such Remittance Date to the
related Certificate Account, the following (other than any Amounts Held for
Future Distribution in respect of such Remittance Date not exceeding the
Threshold Amount and any amounts permitted to be retained by the Servicer or
withdrawn from such account by the Servicer pursuant to the terms of this
Agreement):
(a) all payments on account of principal (including Prepayments in
Full and Curtailments received during the Applicable Unscheduled Principal
Receipt Period) and interest (other than payments of interest related to
any Unscheduled Principal Receipt as to which the Applicable Unscheduled
Principal Receipt Period is a Mid-Month Receipt Period received by the
Servicer on or before the last day of the Applicable Unscheduled Principal
Receipt Period ending in the month in which such prepayment occurs), all
net REO Disposition proceeds and proceeds received from any condemnation
award or proceeds in lieu of condemnation other than that portion of such
proceeds released to the mortgagor in accordance with the terms of the
Mortgage Loan Documents or Prudent Servicing Practices;
(b) all net Liquidation Proceeds, all net Partial Liquidation
Proceeds and Insurance Proceeds, other than any portion of Insurance
Proceeds to be applied to the restoration or repair of the related
Mortgaged Property or released to the Borrower in accordance with the
requirements of law or Prudent Servicing Practices;
(c) all P&I Advances made by the Servicer;
(d) the Purchase Price, or portion thereof, paid for any Mortgage
Loans or property acquired in respect thereof repurchased or substituted
by a Representing Party; and
(e) all other amounts required to be deposited in the Custodial P&I
Account or the Certificate Account pursuant to this Agreement.
(f) Notwithstanding Section 18.3.1, the Servicer shall be entitled
to withhold and to pay to itself the applicable Servicing Fee (as adjusted
pursuant to Section 7.6.1) from any payment on account of interest or
other recovery (including Net REO Proceeds) as received and prior to
deposit of such payments in the Certificate Account; provided further that
with respect to any payment of interest received by the Servicer in
respect of a Mortgage Loan (whether paid by the Mortgagor or received as
Liquidation Proceeds, Insurance Proceeds or otherwise) which is less than
the full amount of interest then due with respect to such Mortgage Loan,
only that portion of such payment that bears the same relationship to the
total amount of such payment of interest as the per annum rate used to
calculate the Servicing Fee, as set forth in Section 4.6, bears to the
Mortgage Interest Rate borne by such Mortgage Loan shall be allocated to
the Servicing Fee with respect to such Mortgage Loan.
18.3.2. Servicer Compensation. The Servicer shall withdraw its
Servicing Fee for each Mortgage Loan net of any Month End Interest payable
pursuant to Section 7.6.1 from the related Custodial P&I Account prior to the
remittance of such amounts to the Certificate Account with all other payments
received with respect to the Mortgage Loans.
ARTICLE 19
Transfers and Termination of Servicing
Section 19.1 Transfer of Servicing
19.1.1. Transfer Prohibition. The Servicer may not sell or transfer
its portfolio serviced hereunder without the prior written consent of the Master
Servicer, which consent cannot be unreasonably withheld. Further, the Servicer
may not subcontract any of its servicing duties, except as set forth in Section
11.2.1.
19.1.2. Transfer Request. Any request for sale or transfer of
servicing shall be reviewed on an individual basis. For a request to be
considered, however, the transferor must submit a written request to the Master
Servicer. The transferee must agree to enter into a servicing agreement with the
Master Servicer substantially in the form of this Agreement and must be approved
by the Master Servicer, and, if applicable, any rating agency with respect
Mortgage Loans which are owned by a trust which has issued mortgage-backed
securities, securitized by such Mortgage Loans, which have been rated at the
request of such trust by such rating agency. The Master Servicer must receive
this documentation at least 45 days prior to the requested date of transfer. The
transferor shall be notified in writing of the Master Servicer's approval or
denial. Such transfer shall be denied if the transferee does not meet the
approval requirements of the Master Servicer, or any such rating agency.
19.1.3. Servicer Liability. The transferor of servicing shall be
liable to the Master Servicer and the Trustee for any servicing obligation
violations that occur before, during, and up to and including the day the
portfolio is actually transferred. The transferee of servicing shall be liable
for any breach of servicing obligations that occurs after the transfer of the
servicing portfolio.
19.1.4. Master Servicer's Determination. If the transferor and
transferee disagree about liability for violations of representations and
warranties and servicing requirements hereunder, the Master Servicer has the
right, in its reasonable discretion, to determine which party or parties are
liable for such violations.
Section 19.2 Termination of Servicing
19.2.1. Grounds for Termination. The Trustee shall have the right to
terminate for cause the servicing privileges of the Servicer under this
Agreement, either with respect to certain Mortgage Loans serviced hereunder or
with respect to all Mortgage Loans serviced hereunder in the event that (i) any
of the following occur, (ii) the Trustee has given the Servicer prior written
notice of the occurrence of such event, (iii) with respect to clauses (a), (e)
or (j) hereof, the Servicer has failed to cure such event within a reasonable
time, which shall in all cases be no less than ninety (90) days and (iv) with
respect to clause (i), the Servicer has failed to cure such event by 5:00 PM New
York time on the Business Day following receipt of notice of such failure to
advance provided by the Master Servicer or trustee:
(a) the Servicer has made one or more false or misleading
representations or warranties in this Agreement or any Mortgage Loan
Purchase Agreement, or in any documents relating to the foregoing
agreements;
(b) the appointment of a trustee or receiver for the Servicer or any
of its property;
(c) the execution by the Servicer of an assignment for the benefit
of its creditors;
(d) any material change in the financial status of the Servicer
that, in the opinion of the Trustee, could materially adversely affect the
Trustee, or the Servicer's ability to service the Mortgage Loans;
(e) the Servicer's placement on probation or suspension by a federal
or state government agency, including, without limitation, FHLMC, FNMA or
GNMA;
(f) the Servicer's assignment or attempted assignment of any of its
interests, rights, or obligations set forth herein without the Master
Servicer's prior written consent;
(g) the Servicer has been terminated for cause pursuant to the terms
of another servicing agreement with the Master Servicer;
(h) failure by the Servicer to duly perform, within the required
time periods, its obligations under Sections 4.1.3 or 4.1.4, subject to
any cure period set forth in such Sections;
(i) failure by the Servicer to make a P&I Advance pursuant to
Section 17.1 hereof; or
(j) the Servicer has breached any material obligation set forth or
incorporated by reference in this Agreement (other than any obligation
referred to in clauses (a) through (i) of this Section 19.2.1) or the
Mortgage Loan Purchase Agreement, including, without limitation, the
Servicer's failure to maintain the requisite Fidelity Bond and Errors and
Omissions Policy in the amounts specified herein.
19.2.2. Trustee Notification. The Master Servicer shall notify the
Trustee of the occurrence of any of the events set forth in Section 19.2.1,
together with the Master Servicer's recommended course of action regarding the
termination of the Servicer.
19.2.3. Servicer Termination. (a) Following the occurrence of any of
the events set forth in Section 19.2.1, the Trustee may elect, at its reasonable
discretion, to terminate the Servicer under this Agreement with respect to the
Mortgage Loans. The Trustee shall provide a written termination notice to the
Servicer.
(b) Notwithstanding anything to the contrary in this Agreement, the
Trustee or, if applicable, the Trust Administrator may terminate the
Servicer following the occurrence of any of the events set forth in
Section 3.09 of the Pooling and Servicing Agreement, in accordance with
the procedure for termination set forth therein.
19.2.4. Consequences of Termination. If this Agreement with the
Servicer is terminated pursuant to Section 19.2.3 hereof, the Servicer shall
deliver all Servicer Mortgage Loan Files, in their entirety, for those Mortgage
Loans serviced under this Agreement, as well as any other documents or reports
held by the Servicer concerning such Mortgage Loans, to the transferee
designated by the Trustee and shall assist in the efficient and timely transfer
of the servicing to such transferee. The Servicer shall not be entitled to
compensation for servicing following its termination.
19.2.5. Effect of Termination. In the event of the termination of
this Agreement, the Servicer is not released from its obligations under this
Agreement. If its servicing is terminated for cause, the Servicer must pay the
expenses of the Master Servicer incurred in connection with transfer of the
servicing and any actual and direct damages, including, without limitation,
actual and direct damages or losses of the Trustee resulting from such
termination.
19.2.6. Custodial Account Threshold Reduction. In the event that any
of the events specified in clauses (a) through (g) or clause (j) of Section
19.2.1 or in clauses (g), (h) or (i) of Section 4.1.6 occur, the Master
Servicer, in its reasonable discretion, may notify the Servicer in writing that
the applicable Threshold Amount has been reduced to such amount not less than
$1,000 as shall be specified in such notice.
19.2.7. Expenses of Termination. The Servicer shall promptly
reimburse the Master Servicer (or any designee of the Master Servicer), the
Trustee and the Depositor for all reasonable expenses incurred by the Master
Servicer (or such designee), the Trustee or the Depositor, as such are incurred,
in connection with the termination of the Servicer as servicer and the transfer
of servicing of the Mortgage Loans to a successor servicer. The provisions of
this paragraph shall not limit whatever rights the Master Servicer, the Trustee
or the Depositor 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.
ARTICLE 20
Miscellaneous Provisions
Section 20.1 Amendments
20.1.1. Unilateral Authority. The Servicer acknowledges that the
Master Servicer may, upon written notice, supplement or amend the provisions of
this Agreement from time to time, without the need to obtain the Servicer's
consent to (a) correct ambiguous or erroneous provisions in this Agreement; (b)
make changes necessary or helpful to maintain compliance with applicable law,
including any supplement or amendment necessary to effect or facilitate
compliance by the Servicer with Regulation AB or to conform this Agreement to
industry practices relating to Regulation AB; (c) conform to evolving industry
standards regarding the servicing of residential mortgage loans generally; (d)
modify the Servicer Mortgage Loan Schedule to reflect the purchase of any
Mortgage Loan pursuant to this Agreement or another agreement or to change the
applicable loan Type for any Mortgage Loan; (e) to change the definition of
Applicable Unscheduled Receipt Period with respect to any Mortgage Loan and any
type of Unscheduled Principal Receipt from a Mid-Month Receipt Period to a Prior
Month Receipt Period or from a Prior Month Receipt Period to a Mid-Month Receipt
Period; or (f) make such other modifications or amendments thereto, which the
Master Servicer deems advisable, provided that no such modification or amendment
shall have a material adverse impact so as to materially increase the
obligations of, or to materially decrease the benefits to, the Servicer.
20.1.2. Consensual Amendment. Except as provided for in Section
20.1.1 hereof, the Master Servicer must obtain the written consent of the
Servicer to any amendment hereto that would either increase materially the
obligations of the Servicer or decrease materially the benefits to the Servicer.
20.1.3. Trustee Notification. The Trustee shall be provided with
notice of the substance of any amendments or modifications made to this
Servicing Agreement pursuant to the provisions of this Section 20.1.
20.1.4. Trustee Disapproval. With regard to any proposed
modification or amendment to this Agreement which shall have a material adverse
impact upon the beneficial rights enjoyed hereunder by the Trustee, the Trustee
shall receive written notice of the substance of any proposed amendments or
modifications at least ten business days prior to the proposed date of enactment
of such amendment or modification which shall also state therein the proposed
date of enactment. If the Trustee notifies the Master Servicer in writing, prior
to the proposed date of enactment, of its opposition to the adoption of such an
amendment or modifications, the Master Servicer shall not proceed with such
modification or amendment.
Section 20.2 General Construction
20.2.1. Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
20.2.2. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous servicing
agreements, understandings, inducements and conditions, expressed or implied,
oral or written, of any nature whatsoever with respect to the subject matter
thereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
20.2.3. Governing Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement shall be governed by,
construed, interpreted and enforced in accordance with the laws of the State of
New York, notwithstanding any New York or other choice-of-law rules to the
contrary.
20.2.4. Indulgences Not Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege, with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
20.2.5. Titles Not to Affect Interpretation. The titles of the
articles and sections contained in this Agreement are for convenience only, and
they neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
20.2.6. Provisions Severable. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
20.2.7. Servicer an Independent Contractor. All services, duties and
responsibilities of the Servicer under this Agreement shall be performed and
carried out by the Servicer as an independent contractor, and none of the
provisions of this Agreement shall be deemed to make, authorize or appoint the
Servicer as agent or representative of any Trustee of any Mortgage Loans or of
the Master Servicer.
20.2.8. Third Party Beneficiary.
(a) The parties agree that the Trustee and, if applicable, the Trust
Administrator are intended third party beneficiaries of the
representations, warranties, covenants and agreements of the Servicer set
forth in this Agreement. The Trustee shall have full authorization to
enforce directly against the Servicer any of the obligations of the
Servicer provided for herein.
(b) For purposes of this Agreement, including but not limited to
Section 4.1.3, any Master Servicer shall be considered a third party
beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Master Servicer herein as if it were a direct party to
this Agreement.
(c) The parties agree that the Depositor is an intended third party
beneficiary of the representations, warranties, covenants and agreements
of the Servicer set forth in this Agreement. The Depositor shall have full
authorization to enforce directly against the Servicer any of the
obligations of the Servicer provided for herein.
20.2.9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and such counterparts
shall constitute one and the same instrument.
Section 20.3 Regulation AB Compliance; Intent of Parties;
Reasonableness. The parties hereto acknowledge 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
agree to comply with requests made by the Depositor or the Master Servicer in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with the Trust, the
Servicer shall cooperate fully with the Master Servicer and the Depositor to
deliver to the Master Servicer and/or the Depositor (including its assignees or
designees), any and all statements, reports, certifications, records and any
other information available to such party and reasonably necessary in the good
faith determination of the Depositor or the Master Servicer to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Servicer reasonably believed by the Depositor or the
Master Servicer to be necessary in order to effect such compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date set forth
above.
XXXXX FARGO BANK, N.A.
as Servicer
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
---------
XXXXX FARGO & COMPANY MASTER GUARANTEE
AGREEMENT REGARDING CUSTODIAL P&I ACCOUNT FUNDS
THIS MASTER GUARANTEE AGREEMENT (the "Guarantee") dated as of May 1, 1999
is entered into by Xxxxx Fargo & Company ("Xxxxx Fargo"), a Delaware
corporation, in favor of each trustee now or hereafter acting in such capacity
for the benefit of the certificateholders of each outstanding and future series
of Xxxxx Fargo Asset Securities Corporation mortgage backed securities
transactions (collectively, the "MBS Transactions"), including without
limitation the trustees identified in Paragraph 8 hereof, and any successor
trustee, all of which trustees are referred collectively in this Guarantee as
the "Trustee."
WHEREAS, this Guarantee has been required by Standard & Poor's, Fitch,
Inc., Duff & Xxxxxx Credit Rating Co. and Xxxxx'x Investors Service, Inc.
(collectively, the "Rating Agencies") (each of which has assigned ratings to
certain of the classes issued in certain of the MBS Transactions) in connection
with their agreement to permit Xxxxx Fargo Bank, N.A., as servicer in the MBS
Transactions (in such capacity, "Servicer"), to hold among Servicer's general
corporate funds for a period of time principal and interest payments, insurance
proceeds, liquidation proceeds and other amounts received by Servicer pertaining
to the mortgage loans underlying the MBS Transactions serviced by Servicer
(collectively, the "Mortgage Loans").
WHEREAS, Servicer is an indirect, wholly-owned subsidiary of Xxxxx Fargo,
a bank holding company, and Xxxxx Fargo derives substantial benefit from
Servicer's servicing of the Mortgage Loans pursuant to the terms of a separate
servicing agreement between Xxxxx Fargo Bank, N.A., as master servicer, and
Servicer, as servicer, for each MBS Transaction (each, a "Servicing Agreement").
WHEREAS, to further induce the Rating Agencies to permit Servicer to
withdraw funds from the Custodial P&I Accounts and commingle such funds with the
general assets of Servicer to be used for general corporate purposes until such
time as such funds are required by the terms of the applicable Servicing
Agreement to be remitted to the related Certificate Account, Xxxxx Fargo has
agreed to guarantee the performance of Servicer's obligation under the Servicing
Agreements to timely remit to the related Certificate Accounts the amounts, if
any, so withdrawn from the Custodial P&I Accounts and so used by Servicer.
NOW THEREFORE, in consideration of the Rating Agencies' permitting the
described arrangement, and for other good and valuable consideration the receipt
and sufficiency of which Xxxxx Fargo hereby acknowledges, Xxxxx Fargo hereby
agrees for the benefit of each Trustee for the benefit of the certificateholders
of each MBS Transaction as follows:
1. Defined Terms. Capitalized terms used but not defined in this Guarantee
shall have the respective meanings ascribed to such terms in each
Servicing Agreement.
2. Guarantee of Certain Obligation of Servicer under Servicing Agreement.
Xxxxx Fargo hereby absolutely, unconditionally and irrevocably guarantees
to each Trustee for the benefit of the certificateholders of each MBS
Transaction the full and prompt performance, satisfaction and discharge of
Servicer's obligation under each Servicing Agreement to remit to the
related Certificate Account by the time specified in each Servicing
Agreement amounts, if any, withdrawn by the Servicer from the related
Custodial P&I Account and commingled with the Servicer's general assets
(such obligation, the "Servicer's Obligation").
3. Guarantee Absolute. The liability of Xxxxx Fargo under this Guarantee
shall be absolute and unconditional irrespective of: (i) any change in the
time, manner of place of performance of, or in any other term of, the
Servicer's Obligation; (ii) the avoidance or subordination of any
Servicer's Obligation, or the invalidity or unenforceability thereof;
(iii) the waiver, consent, extension, forbearance or granting of any
indulgence, or other modification or amendment to any obligation of
Servicer under the Servicing Agreement; including without limitation the
Servicer's Obligation; (iv) the disallowance under bankruptcy or similar
laws relating to insolvency applicable to Servicer of all or any portion
of any claim by the Trustee or certificate holders for the performance,
satisfaction, and discharge of the Servicer's Obligation; or (v) any other
circumstance that might otherwise constitute a defense to, or a discharge
of the Servicer's Obligation (except for an express written release or
discharge of Servicer by the Trustee), all of the foregoing being
expressly waived by Xxxxx Fargo as defenses to its obligations under this
Guarantee.
4. Waiver. Xxxxx Fargo hereby waives any requirement of promptness,
diligence, presentment, demand, filing of claims with a court in the event
of receivership or bankruptcy of Servicer, protest, or notice of protest
with respect to the Servicer's Obligation, and notice of acceptance of
this Guarantee.
5. Reinstatement. Guarantor further agrees that, to the extent that the
Servicer or the Guarantor makes a payment or payments to the Trustee,
which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to the Servicer or the Guarantor or their respective
estate, trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, this Guarantee and the advances or part thereof
which have been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such
initial payments, reduction or satisfaction occurred.
6. No Waiver of Rights. No failure or delay on the part of the Trustee or the
Trust Administrator, if applicable, in exercising any right or remedy
arising under this Guarantee shall operate as a waiver of the Trustee's
rights hereunder; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise hereunder or the exercise
of any other right by or on behalf of the Trustee.
7. Representation and Warranties. Xxxxx Fargo hereby represents and warrants
to the Trustee as follows:
(a) Organization. Xxxxx Fargo is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Xxxxx Fargo is duly qualified and in good standing to
transact business in each jurisdiction in which such qualification
is necessary, other than those jurisdictions where the failure to be
so qualified would not have a material adverse effect upon the
business, assets or financial condition of Xxxxx Fargo.
(b) Authority. Xxxxx Fargo has all requisite corporate power and
authority to execute and enter into this Guarantee and to perform
the obligations required of it hereunder. The execution and delivery
of this Guarantee and the consummation of the undertakings
contemplated hereby, have each been duly and validly authorized by
all necessary corporate action, and this Guarantee constitutes a
valid and legally binding agreement of Xxxxx Fargo enforceable in
accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, moratorium, reorganization or other laws
and regulations affecting the rights and remedies of creditors
generally.
(c) No Conflicts. The execution, delivery, and performance of this
Guarantee by Xxxxx Fargo will not constitute (a) a violation or
breach of any terms or provisions of Xxxxx Fargo's Restated
Certificate of Incorporation or by-laws or (b) a violation or breach
of any terms or provisions of, or a default under any provision of
statutory law or published regulation or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which Xxxxx Fargo is a party or by which Xxxxx Fargo is bound, or
any order, rule or regulation binding on Xxxxx Fargo and known to
Xxxxx Fargo of any court or governmental agency or body having
jurisdiction over Xxxxx Fargo.
8. Notices. All notices and other communications hereunder shall be in
writing (including a writing delivered by facsimile transmission) and
shall be deemed to have been duly given (a) when delivered, if sent by
registered or certified mail (return receipt requested), or (b) when
delivered, if delivered personally or by facsimile, or (c) on the
following business day, if sent by overnight mail or overnight courier, in
each case to Xxxxx Fargo and the Trustee at the following addresses (or at
such other addresses as shall be specified by like notice):
If to Xxxxx Fargo :
Corporate Secretary
Xxxxx Fargo & Company
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
With a copy to:
Corporate Treasury
Xxxxx Fargo & Company
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
If to the Trustee:
Wachovia Bank, National Association, as Trustee
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
or to such other address to receive any such confirmation or notice as the
notice party may have designated by written notice to the other notice
party at the above address.
9. Successors and Assigns. This Guarantee shall be binding upon Xxxxx Fargo,
its successors, transferees, and assigns, and shall inure to the benefit
of and be enforceable by the Trustee and its successors, transferees and
assigns.
10. Waiver of Subrogation. As long as any Servicer's Obligation has not been
satisfied and discharged in full, Xxxxx Fargo shall have no right of
subrogation and hereby waives any right to enforce any remedy which the
Trustee now has or may hereafter have against Servicer or any other
guarantor of all or any part of the Servicer's Obligation.
11. Subordination. Xxxxx Fargo agrees that any and all claims of Xxxxx Fargo
against Servicer or any other guarantor of all or any part of the
Servicer's Obligation, whether arising by reason of any payment by Xxxxx
Fargo pursuant to the provisions hereof or otherwise, and all indebtedness
of Servicer to Xxxxx Fargo, shall be subordinate and subject in right of
payment to the full and prompt performance, satisfaction, and discharge,
of Servicer's Obligation.
12. Entire Agreement; Amendment and Waivers. This Guarantee contains the
complete and entire agreement of Xxxxx Fargo with respect to its
provisions, and no change, waiver or amendment hereto shall be binding
upon Xxxxx except as separately set forth in a writing and duly executed
by Xxxxx Fargo.
13. Severability. The invalidity, illegality, or unenforceability of any
provision of this Guarantee pursuant to judicial decree shall not affect
the validity, legality, or enforceability of any other provisions of this
Guarantee, all of which other provisions shall remain in full force and
effect as written.
14. Governing Law. This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York (regardless of the laws
that might otherwise govern under applicable principles of conflicts of
law or comity).
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the
Guarantor, has executed this Guarantee on behalf of the Guarantor as of the day
and year first written above.
XXXXX FARGO & COMPANY
By
---------------------------
[ ]
[ ]
EXHIBIT B
---------
FORM OF ANNUAL CERTIFICATION
Re: The Servicing Agreement dated as of [ ], (the "Agreement"),
between Xxxxx Fargo Bank, N.A., a national banking association (the
"Servicer") and Xxxxx Fargo Bank, N.A., a national banking
association, (the "Master Servicer"),
I, ________________________________, the _______________________ of Xxxxx
Fargo Bank, N.A., certify to the Depositor and the Master Servicer, 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 Depositor and the Master Servicer
pursuant to the Agreement (collectively, the "Servicer Servicing Information");
(2) Based on my knowledge, the Servicer 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 Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been provided to
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.
Date: _________________________
By:
Name: _________________________________
Title: ________________________________
EXHIBIT C
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SUBSERVICER INFORMATION
(A) the Subservicer's form of organization;
(B) a description of how long the Subservicer has been servicing
residential mortgage loans; a general discussion of the Subservicer's experience
in servicing assets of any type as well as a more detailed discussion of the
Subservicer's experience in, and procedures for, the servicing function it will
perform under the Agreement; information regarding the size, composition and
growth of the Subservicer's portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the
Subservicer that may be material, in the good faith judgment of the Master
Servicer or the Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable, including, without
limitation:
(1) whether any prior securitizations of mortgage loans of a type
similar to the Mortgage Loans involving the Subservicer have defaulted or
experienced an early amortization or other performance triggering event
because of servicing during the three-year period immediately preceding
the date of engagement of the Subservicer;
(2) the extent of outsourcing the Subservicer utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect to
securitizations of residential mortgage loans involving the Subservicer as
a servicer during the three-year period immediately preceding the date of
engagement of the Subservicer;
(4) whether the Subservicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger; and
(5) such other information as the Master Servicer or the Depositor
may reasonably request for the purpose of compliance with Item 1108(b)(2)
of Regulation AB;
(C) a description of any material changes during the three-year period
immediately preceding the date of engagement of the Subservicer to the
Subservicer's policies or procedures with respect to the servicing function it
will perform under the Agreement for mortgage loans of a type similar to the
Mortgage Loans;
(D) information regarding the Subservicer's financial condition, to the
extent that there is a material risk that an adverse financial event or
circumstance involving the Subservicer could have a material adverse effect on
the performance by the Subservicer of its servicing obligations under the
Agreement;
(E) information regarding advances made by the Subservicer on the Mortgage
Loans and the Subservicer's overall servicing portfolio of residential mortgage
loans for the three-year period immediately preceding the date of engagement of
the Subservicer, which may be limited to a statement by an authorized officer of
the Subservicer to the effect that the Subservicer has made all advances
required to be made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the reasons for such
failure to advance;
(F) a description of the Subservicer's processes and procedures designed
to address any special or unique factors involved in servicing loans of a
similar type as the Mortgage Loans;
(G) a description of the Subservicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through liquidation
of mortgaged properties, sale of defaulted mortgage loans or workouts; and
(H) information as to how the Subservicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other practices
with respect to delinquency and loss experience.
