WELLS FARGO BANK, N.A., as Master Servicer AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-3, as Issuing Entity DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee AMERICAN HOME MORTGAGE ACCEPTANCE, INC. as Sponsor and AMERICAN HOME MORTGAGE...
EXHIBIT
99.2
|
XXXXX
FARGO BANK, N.A.,
as
Master Servicer
as
Issuing Entity
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Indenture Trustee
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
Sponsor
and
AMERICAN
HOME MORTGAGE SERVICING, INC.
as
Servicer
|
|
Dated
as of December 28, 2006
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|
Mortgage
Loans
|
TABLE
OF
CONTENTS
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ARTICLE
I
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|
|
Definitions
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|
|
Section
1.01
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Definitions.
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|
Section
1.02
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Other
Definitional Provisions.
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|
Section
1.03
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Interest
Calculations.
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|
ARTICLE
II
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|
|
Representations
and Warranties
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|
|
Section
2.01
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Representations
and Warranties Regarding the Servicer.
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|
Section
2.02
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Existence.
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|
Section
2.03
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Enforcement
of Representations and Warranties.
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|
ARTICLE
III
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|
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Administration
and Servicing of Mortgage Loans
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|
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Section
3.01
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Servicer
to Act as Servicer.
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|
Section
3.02
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Subservicing
Agreements Between Servicer and Subservicers.
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|
Section
3.03
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Successor
Subservicers.
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|
Section
3.04
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Liability
of the Servicer.
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|
Section
3.05
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Assumption
or Termination of Subservicing Agreements by Master
Servicer.
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|
Section
3.06
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Collection
of Mortgage Loan Payments.
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|
Section
3.07
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Withdrawals
from the Protected Account.
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|
Section
3.08
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Collection
of Taxes Assessments and Similar Items; Servicing
Accounts.
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|
Section
3.09
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Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
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|
Section
3.10
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Maintenance
of Primary Insurance Policies; Collection Thereunder.
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|
Section
3.11
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Maintenance
of Hazard Insurance and Fidelity Coverage.
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|
Section
3.12
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Due-on-Sale
Clauses; Assumption Agreements.
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|
Section
3.13
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Realization
Upon Defaulted Mortgage Loans.
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|
Section
3.14
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Indenture
Trustee to Cooperate; Release of Mortgage Files.
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|
Section
3.15
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Servicing
Compensation.
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|
Section
3.16
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Reserved.
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|
Section
3.17
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Reserved.
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|
Section
3.18
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Optional
Purchase of Defaulted Mortgage Loans.
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|
Section
3.19
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Information
Required by the Internal Revenue Service Generally and Reports
of
Foreclosures and Abandonments of Mortgaged Property.
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Section
3.20
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Fair
Credit Reporting Act.
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Section
3.21
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Waiver
of Prepayment Charges.
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ARTICLE
IV
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|
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Servicing
Certificate
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Section
4.01
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Remittance
Reports.
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Section
4.02
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Reserved.
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Section
4.03
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Reserved.
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|
Section
4.04
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Advances.
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|
Section
4.05
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Compensating
Interest Payments.
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|
Section
4.06
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Servicer
Compliance Statement.
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|
Section
4.07
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Report
on Assessments of Compliance and Attestation.
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|
Section
4.08
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Attestation
Reports.
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|
Section
4.09
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Annual
Certification.
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Section
4.10
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Intention
of the Parties and Interpretation.
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Section
4.11
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Indemnification.
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ARTICLE
V
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|
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The
Servicer
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Section
5.01
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Liability
of the Servicer.
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|
Section
5.02
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Merger
or Consolidation of or Assumption of the Obligations of the
Servicer.
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|
Section
5.03
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Limitation
on Liability of the Servicer and Others.
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Section
5.04
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Servicer
Not to Resign.
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Section
5.05
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Delegation
of Duties.
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Section
5.06
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Indemnification.
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Section
5.07
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Duties
of the Servicer With Respect to the Indenture.
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Section
5.08
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Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
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ARTICLE
VI
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Default
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Section
6.01
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Servicing
Default.
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|
Section
6.02
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Master
Servicer to Act; Appointment of Successor.
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Section
6.03
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Reserved.
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Section
6.04
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Waiver
of Defaults.
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ARTICLE
VII
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Miscellaneous
Provisions
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Section
7.01
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Amendment.
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Section
7.02
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GOVERNING
LAW.
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Section
7.03
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Notices.
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Section
7.04
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Severability
of Provisions.
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Section
7.05
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Third-Party
Beneficiaries.
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Section
7.06
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Counterparts.
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Section
7.07
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Effect
of Headings and Table of Contents.
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Section
7.08
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Termination.
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Section
7.09
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No
Petition.
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Section
7.10
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No
Recourse.
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Section
7.11
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Consent
to Jurisdiction.
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Section
7.12
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Certain
Terms Concerning Indenture
Trustee.
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EXHIBIT
A
- MORTGAGE LOAN SCHEDULE
EXHIBIT
B
- FORM OF REQUEST FOR RELEASE
EXHIBIT
C
- FORM OF CERTIFICATION TO BE PROVIDED BY THE SERVICER
EXHIBIT
D
- LOAN LEVEL FORMAT FOR TAPE INPUT, SERVICER PERIOD REPORTING
EXHIBIT
E
- REPORTING DATA FOR DEFAULTED LOANS
EXHIBIT
F
- CALCULATION OF REALIZED LOSS/GAIN FORM 332 - INSTRUCTION SHEET
EXHIBIT
G
- SERVICING CRITERIA
This
Servicing Agreement, dated as of December 28, 2006, among Xxxxx Fargo Bank,
N.A., as Master Servicer (“Master Servicer”), American Home Mortgage Investment
Trust 2006-3, as Issuing Entity (the AIssuing
Entity”), American Home Mortgage Acceptance, Inc. as Sponsor (the “Sponsor”),
American Home Mortgage Servicing, Inc. as Servicer (the “Servicer”) and Deutsche
Bank National Trust Company, as Indenture Trustee (the AIndenture
Trustee”).
W
I T
N E S S E T H T H A T :
WHEREAS,
pursuant to the terms of the Mortgage Loan Purchase Agreement, American Home
Mortgage Securities LLC (the “Company” or “Depositor”) will acquire the Mortgage
Loans;
WHEREAS,
the Company will create American Home Mortgage Investment Trust 2006-3, a
Delaware statutory trust (the “Issuing Entity”), and will transfer the Mortgage
Loans and all of its rights under the Mortgage Loan Purchase Agreement to the
Issuing Entity;
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement, dated as
of
December 28, 2006 (“Trust Agreement”), among the Company, as depositor,
Wilmington Trust Company, as owner trustee (“Owner Trustee”) and Xxxxx Fargo
Bank, N.A., as securities administrator (the “Securities Administrator”), the
Company will convey the Mortgage Loans to the Issuing Entity in exchange for
the
Certificates (as defined below);
WHEREAS,
pursuant to the terms of the Trust Agreement, the Issuing Entity will issue
and
transfer to or at the direction of the Depositor, the Trust Certificates, 2006-3
(“Certificates”);
WHEREAS,
pursuant to the terms of an Indenture, dated as of December 28, 2006
(“Indenture”), among the Issuing Entity, the Securities Administrator and the
Indenture Trustee, the Issuing Entity will pledge the Mortgage Loans and issue
and transfer to or at the direction of the Purchaser the Mortgage-Backed Notes,
Series 2006-3 (the “Notes”);
WHEREAS,
pursuant to the terms of the Master Servicing Agreement, the Master Servicer
will master service the Mortgage Loans set forth on the Mortgage Loan Schedule
for the benefit of the holders of the Notes; and
WHEREAS,
pursuant to the terms of this Servicing Agreement, the Servicer shall service
the Mortgage Loans for the benefit of the Issuing Entity, the Indenture Trustee
and the holders of the Notes;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For
all
purposes of this Servicing Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
contained in Appendix A to the Indenture which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this Servicing Agreement shall have the defined meanings when used
in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein.
(b) As
used
in this Servicing Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Servicing Agreement or in any such certificate or other document, and accounting
terms partly defined in this Servicing Agreement or in any such certificate
or
other document, to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent
that
the definitions of accounting terms in this Servicing Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Servicing Agreement or in any such certificate or other document shall
control.
(c) The
words
Ahereof,”
Aherein,”
Ahereunder”
and words of similar import when used in this Servicing Agreement shall refer
to
this Servicing Agreement as a whole and not to any particular provision of
this
Servicing Agreement; Section and Exhibit references contained in this Servicing
Agreement are references to Sections and Exhibits in or to this Servicing
Agreement unless otherwise specified; and the term Aincluding”
shall mean Aincluding
without limitation”.
(d) The
definitions contained in this Servicing Agreement are applicable to the singular
as well as the plural forms of such terms and to the masculine as well as the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
Section
1.03 Interest
Calculations.
All
calculations of interest hereunder that are made in respect of the Stated
Principal Balance of a Mortgage Loan shall be made on the basis of a 360 day
year consisting of twelve 30 day months, notwithstanding the terms of the
related Mortgage Note and Mortgage.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Representations
and Warranties Regarding the Servicer.
The
Servicer represents and warrants to the Issuing Entity, the Indenture Trustee
and the Master Servicer, that:
(i) The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and has the corporate power to own
its
assets and to transact the business in which it is currently engaged. The
Servicer is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Servicer or the
validity or enforceability of the Mortgage Loans;
(ii) The
Servicer has the power and authority to make, execute, deliver and perform
this
Servicing Agreement and all of the transactions contemplated under this
Servicing Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Servicing Agreement. When
executed and delivered, this Servicing Agreement will constitute the legal,
valid and binding obligation of the Servicer enforceable in accordance with
its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights
generally and by the availability of equitable remedies;
(iii) The
Servicer is not required to obtain the consent of any other Person or any
consent, license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this Servicing
Agreement, except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as the case
may be;
(iv) The
execution and delivery of this Servicing Agreement and the performance of the
transactions contemplated hereby by the Servicer will not violate any provision
of any existing law or regulation or any order or decree of any court applicable
to the Servicer or any provision of the charter or bylaws of the Servicer,
or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Servicer is a party or by which the Servicer may be
bound;
(v) No
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending (other than litigation with respect
to
which pleadings or documents have been filed with a court, but not served on
the
Servicer), or to the knowledge of the Servicer threatened, against the Servicer
or any of its properties or with respect to this Servicing Agreement or the
Notes or the Certificates which, to the knowledge of the Servicer, has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Servicing Agreement; and
(vi) The
Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS.
The
foregoing representations and warranties shall survive any termination of the
Servicer hereunder.
Section
2.02 Existence.
The
Issuing Entity will keep in full effect its existence, rights and franchises
as
a statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuing Entity hereunder is or becomes, organized under the laws
of any other state or of the United States of America, in which case the Issuing
Entity will keep in full effect its existence, rights and franchises under
the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Servicing
Agreement.
Section
2.03 Enforcement
of Representations and Warranties.
The
Indenture Trustee, as pledgee of the Mortgage Loans, shall enforce the
representations and warranties and related obligations for breaches thereof
of
the Sponsor pursuant to the Mortgage Loan Purchase Agreement. Upon the discovery
by the Sponsor, the Master Servicer, the Indenture Trustee or the Company of
a
breach of any of the representations and warranties made in the Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan which materially and
adversely affects the interests of the Noteholders or the Certificateholders,
the party discovering the same shall give prompt written notice to the other
parties. The Indenture Trustee shall promptly notify the Sponsor and request
that, pursuant to the terms of the Mortgage Loan Purchase Agreement the Sponsor
either (i) cure such breach in all material respects or (ii) purchase such
Mortgage Loan in accordance with the Mortgage Loan Purchase Agreement; provided
that the Sponsor shall, subject to the conditions set forth in the Mortgage
Loan
Purchase Agreement, have the option to substitute an Eligible Substitute
Mortgage Loan or Eligible Substitute Mortgage Loans for such Mortgage Loan
upon
delivery of an Officer’s Certificate to the Indenture Trustee stating that such
Eligible Substitute Mortgage Loan satisfies the definition of Eligible
Substitute Mortgage Loan set forth in Appendix A to the Indenture and that
the
Substitution Adjustment Amount, if any, has been deposited into the Protected
Account. Monthly Payments due with respect to Eligible Substitute Mortgage
Loans
in the month of substitution shall not be part of the Trust Estate and will
be
retained by the Servicer and remitted by the Servicer to the Sponsor on the
next
succeeding Payment Date. For the month of substitution, distributions to the
Payment Account pursuant to this Agreement will include the Monthly Payment
due
on a Deleted Mortgage Loan for such month and thereafter the Sponsor shall
be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Servicer shall amend or cause to be amended the Mortgage Loan Schedule
to reflect the removal of such Deleted Mortgage Loan and the substitution of
the
related Eligible Substitute Mortgage Loan and the Servicer shall promptly
deliver the amended Mortgage Loan Schedule to the Master Servicer, Owner
Trustee, Securities Administrator and Indenture Trustee.
In
connection with the substitution of one or more Eligible Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Servicer will determine the
amount (such amount, a “Substitution Adjustment Amount”), if any, by which the
aggregate Stated Principal Balance of all such Eligible Substitute Mortgage
Loans as of the date of substitution is less than the aggregate principal
balance of all such Deleted Mortgage Loans (after application of the principal
portion of the Monthly Payments due on such Deleted Mortgage Loans in the month
of substitution). The Sponsor shall pay the Substitution Adjustment Amount
to
the Servicer and the Servicer shall deposit such Substitution Adjustment Amount
into the Protected Account upon receipt.
In
connection with any repurchase or substitution of a Mortgage Loan pursuant
to
this Section 2.03, the Sponsor shall furnish to the Securities Administrator
an
officer’s certificate, signed by a duly authorized officer of the Sponsor to the
effect that such repurchase or substitution has been made in accordance with
the
terms and conditions of this Servicing Agreement and that all conditions
precedent to such repurchase or substitution have been satisfied, including
the
delivery to the Securities Administrator of the Purchase Price or Substitution
Adjustment Amount, as applicable, for deposit into the Payment Account, together
with copies of any Opinion of Counsel required to be delivered pursuant to
this
Agreement and the related Request for Release. Upon receipt of such
documentation, the Securities Administrator shall approve such repurchase or
substitution, as applicable, which approval shall be based solely on the
Securities Administrator’s receipt of such documentation and
deposits.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
3.01 Servicer
to Act as Servicer.
(a) The
Servicer shall service, or take such actions as are necessary to ensure, the
servicing and administration of the Mortgage Loans and any REO Property in
accordance with this Servicing Agreement and its normal servicing practices,
which generally shall conform to the standards of an institution prudently
servicing mortgage loans for its own account and shall have full authority
to do
anything it reasonably deems appropriate or desirable in connection with such
servicing and administration. The Servicer may perform its responsibilities
relating to servicing through other agents or independent contractors, but
shall
not thereby be released from any of its responsibilities for the servicing
and
administration of the Mortgage Loans. The authority of the Servicer, in its
capacity as Servicer, and any Subservicer acting on its behalf, shall include,
without limitation, the power on behalf of the Issuing Entity and the Indenture
Trustee to (i) consult with and advise any Subservicer regarding administration
of a related Mortgage Loan, (ii) approve any recommendation by a Subservicer
to
foreclose on a related Mortgage Loan, (iii) supervise the filing and collection
of insurance claims and take or cause to be taken such actions on behalf of
the
insured Person thereunder as shall be reasonably necessary to prevent the denial
of coverage thereunder, and (iv) effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing a related Mortgage Loan,
including the employment of attorneys, the institution of legal proceedings,
the
collection of deficiency judgments, the acceptance of compromise proposals,
the
filing of any claims under any Primary Insurance Policy or Lender Paid Mortgage
Insurance Policy, and any other matter pertaining to a delinquent Mortgage
Loan.
The authority of the Servicer shall include, in addition, the power to (i)
execute and deliver customary consents or waivers and other instruments and
documents, (ii) consent to transfer of any related Mortgaged Property and
assumptions of the related Mortgage Notes (in the manner provided in this
Servicing Agreement) and (iii) collect any Insurance Proceeds and Liquidation
Proceeds. Without limiting the generality of the foregoing, the Servicer and
any
Subservicer acting on its behalf may, and is hereby authorized, and empowered
by
the Indenture Trustee, to execute and deliver any instruments of satisfaction,
cancellation, partial or full release, discharge and all other comparable
instruments, with respect to the related Mortgage Loans, the insurance policies
and the accounts related thereto, and the Mortgaged Properties. The Servicer
may
exercise this power in its own name or in the name of a
Subservicer.
In
accordance with the standards of the preceding paragraph, the Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the payment of taxes and assessments on the Mortgaged Properties, which advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.08, and further as provided in Section 3.07;
provided that the Servicer shall not be obligated to make such advance if,
in
its good faith judgment, the Servicer determines that such advance will be
a
Nonrecoverable Advance.
The
relationship of the Servicer (and of any successor to the Servicer under this
Agreement) to the Master Servicer and the other parties hereto under this
Agreement is intended by the parties to be that of an independent contractor
and
not that of a joint venturer, partner or agent; provided, however, that the
Servicer is authorized and empowered by the Indenture Trustee, in its own name
or in the name of any Subservicer, when the Servicer or such Subservicer, as
the
case may be, believes it is appropriate in its best judgment to register any
Mortgage Loan on the MERS7
System,
or cause the removal from the registration of any Mortgage Loan on the
MERS7
System,
to execute and deliver, on behalf of the Indenture Trustee, any and all
instruments of assignment and other comparable instruments with respect to
such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Indenture Trustee and its successors and assigns. Any expenses incurred
in connection with the actions described in the preceding sentence shall be
borne by the Servicer in accordance with Section 3.15, with no right of
reimbursement; provided, that if, as a result of MERS discontinuing or becoming
unable to continue operations in connection with the MERS System, it becomes
necessary to remove any Mortgage Loan from registration on the MERS System
and
to arrange for the assignment of the related Mortgages to the Indenture Trustee,
then any related expenses shall be reimbursable to the Servicer from the Trust
Estate.
(b) With
respect to each Mortgage Loan, consistent with the terms of this Servicing
Agreement, the Servicer may not consent to the placing of a lien senior to
that
of the Mortgage on the related Mortgaged Property.
(c) The
Servicer or the related Subservicer, as the case may be, shall be entitled
to
(A) execute assumption agreements, substitution agreements, and instruments
of
satisfaction or cancellation or of full release or discharge, or any other
document contemplated by this Servicing Agreement and other comparable
instruments with respect to the Mortgage Loans and with respect to the Mortgaged
Properties subject to the Mortgages (and the Indenture Trustee shall promptly
execute or cause to be executed any such documents on request of the Servicer
and prepared by it) and (B) approve the granting of an easement thereon in
favor
of another Person, any alteration or demolition of the related Mortgaged
Property or other similar matters, if it has determined, exercising its good
faith business judgment in the same manner as it would if it were the owner
of
the related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected thereby.
An assumption pursuant to this Section 3.01 is permitted solely if the
creditworthiness of the prospective purchaser of a Mortgaged Property meets
the
same or better underwriting guidelines as those which were applied to the
original borrower and the security for such Mortgage Loan is not impaired by
the
assumption. Any fee collected by the Servicer or the related Subservicer for
processing such request will be retained by the Servicer or such Subservicer
as
additional servicing compensation.
(d) Notwithstanding
the provisions of Subsection 3.01(a), the Servicer shall not take any action
inconsistent with the interests of the Indenture Trustee or with the rights
and
interests of the Master Servicer under this Servicing Agreement.
(e) The
Indenture Trustee shall execute and return to the Servicer any limited powers
of
attorney and other documents in form as provided to the Indenture Trustee
necessary or appropriate to enable the Servicer to service and administer the
related Mortgage Loans and REO Property.
(f) Notwithstanding
any term to the contrary in this Servicing Agreement, the Servicer may not
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term, or in any manner grant indulgence to any
Mortgagor unless the Servicer has obtained the prior written consent of the
Master Servicer, which consent shall not be unreasonably withheld. The Master
Servicer shall use it best efforts to respond to any such request for consent
by
the Servicer pursuant to this Subsection 3.01(f) within two (2) Business Days
of
receipt of such request.
Section
3.02 Subservicing
Agreements Between Servicer and Subservicers.
(a) The
Servicer may enter into Subservicing Agreements with Subservicers for the
servicing and administration of the Mortgage Loans and for the performance
of
any and all other activities of the Servicer hereunder. Any subservicing
arrangement and the terms of the related Subservicing Agreement must provide
for
the servicing of such Mortgage Loans in a manner consistent with the servicing
arrangements contemplated hereunder and the Servicer shall cause any Subservicer
to comply with the provisions of this Agreement (including, without limitation,
to provide the information required to be delivered under Sections 4.06, 4.07
and 4.08 hereof), to the same extent as if such Subservicer were the related
Servicer. Each Subservicer shall be either (i) an institution the accounts
of
which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans comparable to the Mortgage
Loans, and in either case shall be authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the related
Subservicing Agreement, and in either case shall be a Xxxxxxx Mac or Xxxxxx
Mae
approved mortgage servicer. Any Subservicing Agreement entered into by the
Servicer shall include the provision that such Agreement may be terminated
with
or without cause and without the payment of any termination fee by any successor
servicer (including, without limitation, the Master Servicer as successor
servicer) under this Servicing Agreement. In addition, each Subservicing
Agreement shall provide for servicing of the Mortgage Loans consistent with
the
terms of this Servicing Agreement. The Servicer and the Subservicers may enter
into Subservicing Agreements and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements providing for, among
other things, the delegation by the Servicer to a Subservicer of additional
duties regarding the administration of the Mortgage Loans; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Servicing Agreement, and that no such amendment
or different form shall be made or entered into which could be reasonably
expected to be materially adverse to the interests of the Indenture Trustee
and
the Noteholders, without the consent of the Master Servicer.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Noteholders, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements and the
pursuit of other appropriate remedies, shall be in such form and carried out
to
such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, but shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loan or (ii) from a specific recovery
of
costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
(c) The
Servicer
shall promptly, upon request, provide to the Master Servicer, the Trustee and
the Sponsor a written description (in form and substance satisfactory to the
Master Servicer, the Trustee and the Sponsor) of the role and function of each
Subservicer utilized by the Servicer, specifying (i) the identity of each such
Subservicer, (ii) which (if any) of such Subservicer are “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, and (iii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subservicer identified pursuant to clause (ii)
of
this subsection. The Servicer shall be responsible for obtaining from each
Subservicer and delivering to the Master Servicer any annual statement of
compliance, assessment of compliance, attestation report and Xxxxxxxx-Xxxxx
related certification as and when required to be delivered. The Servicer shall
pay all fees of each of its Subservicers from its own funds.
Section
3.03 Successor
Subservicers.
The
Servicer shall be entitled to terminate any Subservicing Agreement that may
exist in accordance with the terms and conditions of such Subservicing Agreement
subject to the terms of Section 3.02(a) of this Servicing Agreement; provided,
however, that upon termination, the Servicer shall either act as Servicer of
the
related Mortgage Loan or enter into an appropriate contract with a successor
Subservicer and in conformance with the terms of Section 3.02(a) of this
Servicing Agreement pursuant to which such successor Subservicer will be bound
by all relevant terms of the related Subservicing Agreement and this Servicing
Agreement pertaining to the servicing of such Mortgage Loan.
Section
3.04 Liability
of the Servicer.
(a) Notwithstanding
any Subservicing Agreement, any of the provisions of this Servicing Agreement
relating to agreements or arrangements between the Servicer and a Subservicer
or
reference to actions taken through a Subservicer or otherwise, the Servicer
shall under all circumstances remain obligated and primarily liable to the
Indenture Trustee, the Issuing Entity and the Noteholders for the servicing
and
administering of the Mortgage Loans and any REO Property in accordance with
this
Servicing Agreement. The obligations and liability of the Servicer shall not
be
diminished by virtue of Subservicing Agreements or by virtue of indemnification
of the Servicer by any Subservicer, or any other Person. The obligations and
liability of the Servicer shall remain of the same nature and under the same
terms and conditions as if the Servicer alone were servicing and administering
the related Mortgage Loans. The Servicer shall, however, be entitled to enter
into indemnification agreements with any Subservicer or other Person and nothing
in this Servicing Agreement shall be deemed to limit or modify such
indemnification. For the purposes of this Servicing Agreement, the Servicer
shall be deemed to have received any payment on a Mortgage Loan on the date
the
Subservicer received such payment; provided, however, that this sentence shall
not apply to the Master Servicer as the successor servicer.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
shall be deemed to be between the Subservicer and the Servicer alone, and none
of the Master Servicer, the Indenture Trustee, the Issuing Entity or the
Noteholders shall be deemed a party thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Subservicer except as
set
forth in Section 3.05.
Section
3.05 Assumption
or Termination of Subservicing Agreements by Master Servicer.
(a) If
the
Master Servicer or a successor servicer shall assume the servicing obligations
of the Servicer in accordance with Section 6.02 below, the Master Servicer
or
successor servicer, to the extent necessary to permit the Master Servicer to
carry out the provisions of Section 6.02 with respect to the Mortgage Loans,
shall succeed to all of the rights and obligations of the Servicer under each
of
the Subservicing Agreements, unless such Subservicing Agreements are terminated
in accordance with Section 3.02(a) hereof. If such Subservicing Agreements
are
not terminated, the Master Servicer or its designee as the successor master
servicer shall be deemed to have assumed all of the Servicer’s rights and
obligations therein and to have replaced the Servicer as a party to such
Subservicing Agreements to the same extent as if such Subservicing Agreements
had been assigned to the Master Servicer or its designee as a successor master
servicer, except that the Master Servicer or its designee as a successor
servicer shall not be deemed to have assumed any obligations or liabilities
of
the Servicer arising prior to such assumption (other than the obligation to
make
Monthly Advances) and the Servicer shall not thereby be relieved of any
liability or obligations under such Subservicing Agreements arising prior to
such assumption. Nothing in the foregoing shall be deemed to entitle the Master
Servicer or its designee as a successor servicer at any time to receive any
portion of the servicing compensation provided under Section 3.15 except for
such portion as the Servicer would be entitled to receive.
(b) In
the
event that the Master Servicer or a successor servicer assumes the servicing
obligations of the Servicer under Section 6.02, upon the reasonable request
of
the Master Servicer or such successor servicer, the terminated Servicer shall
at
its own expense (or the expense of the Trust, if the Servicer fails to do so)
deliver to the Master Servicer, or to such successor servicer photocopies of
all
documents, files and records, electronic or otherwise, relating to the
Subservicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable efforts to effect the
orderly and efficient transfer of the Subservicing Agreements, or
responsibilities hereunder to the Master Servicer, or to such successor servicer
or the termination of such Subservicing Agreements in accordance with Section
3.02(a).
Section
3.06 Collection
of Mortgage Loan Payments.
(a) The
Servicer will coordinate and monitor remittances by Subservicers to it with
respect to the Mortgage Loans in accordance with this Servicing
Agreement.
(b) The
Servicer shall make its best reasonable efforts to collect or cause to be
collected all payments required under the terms and provisions of the Mortgage
Loans and shall follow, and use its best reasonable efforts to cause
Subservicers to follow, collection procedures comparable to the collection
procedures of prudent mortgage lenders servicing mortgage loans for their own
account to the extent such procedures shall be consistent with this Servicing
Agreement. Consistent with the foregoing, the Servicer or the related
Subservicer may in its discretion (i) waive or permit to be waived any late
payment charge, assumption fee, or any penalty interest in connection with
the
prepayment of a Mortgage Loan and (ii) suspend or reduce or permit to be
suspended or reduced regular monthly payments for a period of up to six months,
or arrange or permit an arrangement with a Mortgagor for a scheduled liquidation
of delinquencies; provided, however, that the Servicer or the related
Subservicer may permit the foregoing only if it believes, in good faith, that
recoveries of Monthly Payments will be maximized; provided further, however,
that Monthly Payments may not be suspended during the twelve months prior to
the
final maturity of the Notes. In the event the Servicer or related Subservicer
shall consent to the deferment of the due dates for payments due on a Mortgage
Note, the Servicer shall nonetheless make a Monthly Advance or shall cause
the
related Subservicer to make a Monthly Advance to the same extent as if such
installment were due, owing and delinquent and had not been deferred through
liquidation of the Mortgaged Property; provided,
however,
that
the obligation of the Servicer or the related Subservicer to make a Monthly
Advance shall apply only to the extent that the Servicer believes, in good
faith, that such advances are not Nonrecoverable Advances.
(c) Within
five Business Days after the Servicer has determined that all amounts which
it
expects to recover from or on account of a Mortgage Loan have been recovered
and
that no further Liquidation Proceeds will be received in connection therewith,
the Servicer shall provide to the Master Servicer and the Securities
Administrator a certificate of a Servicing Officer that such Mortgage Loan
became a Liquidated Mortgage Loan as of the date of such determination. The
Servicer shall provide to the Master Servicer a monthly summary of each Mortgage
Loan that became a Liquidated Mortgage Loan.
(d) The
Servicer shall establish a segregated account in the name of the Indenture
Trustee for the benefit of the Noteholders (the “Protected Account”), which
shall be an Eligible Account, in which the Servicer shall deposit or cause
to be
deposited any amounts representing payments on and any collections in respect
of
the Mortgage Loans due subsequent to the Cut-off Date (other than in respect
of
the payments referred to in the following paragraph) within 2 Business Days
following receipt thereof (or otherwise on or prior to the Closing Date),
including the following payments and collections received or made by it (without
duplication):
(i) all
payments of principal, including Principal Prepayments and Prepayment Penalties,
of or interest on the Mortgage Loans (including advances by a Subservicer)
received by the Servicer directly from Mortgagors or from the respective
Subservicer;
(ii) the
aggregate Repurchase Price of the Mortgage Loans purchased by the Servicer
pursuant to Section 3.18;
(iii) Net
Liquidation Proceeds;
(iv) all
proceeds of any Mortgage Loans repurchased by the Sponsor pursuant to the
Mortgage Loan Purchase Agreement and all Substitution Adjustment Amounts
required to be deposited in connection with the substitution of an Eligible
Substitute Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement;
(v) Insurance
Proceeds, other than Net Liquidation Proceeds, resulting from any insurance
policy maintained on a Mortgaged Property;
(vi) any
Monthly Advance and any Compensating Interest payments;
(vii) any
other
amounts received by the Servicer, including any fees or penalties not retained
by a Subservicer, required to be deposited in the Protected Account pursuant
to
this Servicing Agreement;
(viii)
the
amount of any losses incurred by the Servicer with respect to the investment
of
funds in the Protected Account; and
(ix)
all
prepayment penalties received by the Servicer directly from Mortgagors or from
the respective Subservicer.
provided,
however,
that
with respect to each Due Period, the Servicer shall be permitted to retain
from
payments in respect of interest on the Mortgage Loans, the Servicing Fee for
such Due Period. The foregoing requirements respecting deposits to the Protected
Account are exclusive, it being understood that, without limiting the generality
of the foregoing, the Servicer need not deposit in the Protected Account fees
(including annual fees or assumption fees) or late charges, payable by
Mortgagors, each as further described in Section 3.15, or amounts received
by
the Servicer for the accounts of Mortgagors for application towards the payment
of taxes, insurance premiums, assessments and similar items, which amounts
shall
be deposited in the related Servicing Account pursuant to Section 3.08. In
the
event any amount not required to be deposited in the Protected Account is so
deposited, the Servicer may at any time (prior to being terminated under this
Agreement) withdraw such amount from the Protected Account, any provision herein
to the contrary notwithstanding. The Servicer shall keep records that accurately
reflect the funds on deposit in the Protected Account that have been identified
by it as being attributable to the Mortgage Loans and shall hold all collections
in the Protected Account for the benefit of the Noteholders. The Servicer shall
be entitled to retain all Foreclosure Profits and shall not be obligated to
deposit any Foreclosure Profits in the Protected Account.
Funds
in
the Protected Account may not be invested with, and shall not be commingled
with, the Servicer’s own funds or general assets or with funds respecting
payments on mortgage loans or with any other funds not related to the Notes.
Funds in the Protected Account shall be invested solely in Eligible Investments,
designated in the name of the Indenture Trustee for the benefit of the
Noteholders, which shall mature not later than the Business Day next preceding
the Servicer Remittance Date next following the date of such investment and
shall not be sold or disposed of prior to maturity. All income and gain realized
from any such investment shall be for the benefit of the Servicer or the related
Subservicer. The amount of any losses incurred with respect to any such
investments shall be deposited in the Protected Account by the Servicer on
the
Business Day prior to the Servicer Remittance Date.
(e) The
Servicer will require each Subservicer to hold all funds constituting
collections on the Mortgage Loans, pending remittance thereof to the Servicer,
in one or more accounts meeting the requirements of an Eligible Account, and
invested in Eligible Investments, and in the name of the Indenture Trustee
for
the benefit of the Noteholders. The related Subservicer shall segregate and
hold
all funds collected and received pursuant to each Mortgage Loan separate and
apart from any of its own funds and general assets and any other
funds.
Section
3.07 Withdrawals
from the Protected Account.
(a) The
Servicer shall, from time to time as provided herein, make withdrawals from
the
Protected Account of amounts on deposit therein pursuant to Section 3.06 that
are attributable to the Mortgage Loans for the following purposes (without
duplication):
(i) to
remit
to the Securities Administrator, by the Servicer Remittance Date, all amounts
required to be deposited in the Protected Account as of the close of business
on
the related Determination Date;
(ii) to
the
extent deposited to the Protected Account, to reimburse itself or the related
Subservicer for previously unreimbursed expenses incurred in maintaining
individual insurance policies pursuant to Sections 3.10 or 3.11, or Liquidation
Expenses, paid pursuant to Section 3.13 or otherwise reimbursable pursuant
to
the terms of this Servicing Agreement, such withdrawal right being limited
to
amounts received on the related Mortgage Loans (other than any Repurchase Price
in respect thereto) which represent late recoveries of the payments for which
such advances were made, or from related Liquidation Proceeds;
(iii) to
pay to
itself out of each payment received on account of interest on a Mortgage Loan
as
contemplated by Section 3.15, an amount equal to the related Servicing Fee
(to
the extent not retained pursuant to Section 3.06);
(iv) to
pay to
itself or the Sponsor, with respect to any Mortgage Loan or property acquired
in
respect thereof that has been purchased or otherwise transferred to the Sponsor,
the Servicer or other entity, all amounts received thereon and not required
to
be distributed to Noteholders as of the date on which the related Purchase
Price
or Repurchase Price is determined;
(v) to
reimburse the Servicer or any Subservicer for any Monthly Advance of its own
funds or any advance of such Subservicer’s own funds, the right of the Servicer
or a Subservicer to reimbursement pursuant to this subclause (v) being limited
to amounts received (including, for this purpose, the Repurchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or
recoveries of the principal of or interest on such Mortgage Loan respecting
which such Monthly Advance or advance was made;
(vi) to
reimburse the Servicer or any Subservicer from Insurance Proceeds, Liquidation
Proceeds relating to a particular Mortgage Loan for amounts expended by the
Servicer or such Subservicer pursuant to Section 3.13 in good faith in
connection with the restoration of the related Mortgaged Property which was
damaged by the Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(vii) to
pay
the Servicer or any Subservicer (payment to any Subservicer to be subject to
prior payment to the Servicer of an amount equal to the Servicing Fee), as
appropriate, from Liquidation Proceeds or Insurance Proceeds received in
connection with the liquidation of any Mortgage Loan, the amount which it or
such Subservicer would have been entitled to receive under subclause (iii)
of
this Subsection 3.07(a) as servicing compensation on account of each defaulted
Monthly Payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor, but only to the extent that the aggregate of Liquidation Proceeds
and
Insurance Proceeds with respect to such Mortgage Loan, after any reimbursement
to the Servicer or any Subservicer, pursuant to other subclauses of this
Subsection 3.07(a), exceeds the outstanding Stated Principal Balance of such
Mortgage Loan plus accrued and unpaid interest thereon at the related Mortgage
Rate less the Servicing Fee Rate to but not including the date of payment (in
any event, the aggregate amount of servicing compensation received by a
Subservicer and the Servicer with respect to any defaulted Monthly Payment
shall
not exceed the applicable Servicing Fee);
(viii) to
reimburse the Servicer or any Subservicer for any Nonrecoverable Advance
previously made, and not otherwise reimbursed pursuant to this Subsection
3.07(a);
(ix) to
withdraw any other amount deposited in the Protected Account that was not
required to be deposited therein pursuant to Section 3.06;
(x) to
reimburse the Servicer for costs incurred by it associated with the
environmental report specified in Section 3.13(e); and
(xi) to
clear
and terminate the Protected Account following a termination of the Trust
pursuant to Section 8.01 of the Trust Agreement.
In
connection with withdrawals pursuant to clauses (ii), (iii), (iv), (v), (vi)
and
(vii), the Servicer’s entitlement thereto is limited to collections or other
recoveries on the related Mortgage Loan, and the Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for
the
purpose of justifying any withdrawal from the Protected Account pursuant to
such
clauses. Notwithstanding any other provision of this Servicing Agreement, the
Servicer shall be entitled to reimburse itself for any previously unreimbursed
expenses incurred pursuant to Section 3.13 or otherwise reimbursable expenses
incurred pursuant to the terms of this Servicing Agreement, but only to the
extent of collections or other recoveries on the related Mortgage
Loan.
(b) Notwithstanding
the provisions of this Section 3.07, the Servicer may, but is not required
to,
allow the Subservicers to deduct from amounts received by them or from the
related account maintained by a Subservicer, prior to deposit in the Protected
Account, any portion to which such Subservicers are entitled hereunder as
servicing compensation (including income on Eligible Investments) or
reimbursement of any reimbursable Servicing Advances made by such
Subservicers.
(c) The
Servicer shall pay to the Securities
Administrator
interest
on any payments to the Payment Account which were due on a Servicer Remittance
Date but were made after the related Servicer Remittance Date at a rate equal
to
the federal funds rate from the date due to the date paid, both inclusive.
This
interest shall be solely an obligation of the Servicer and shall not be
recoverable by the Securities Administrator from the Trust or from any other
source.
Section
3.08 Collection
of Taxes Assessments and Similar Items; Servicing Accounts.
(a) The
Servicer shall establish and maintain or cause the related Subservicer to
establish and maintain, one or more Servicing Accounts. The Servicer or a
Subservicer will deposit and retain therein all collections from the Mortgagors
for the payment of taxes, assessments, insurance premiums, or comparable items
as agent of the Mortgagors.
(b) The
deposits in the Servicing Accounts shall be held in trust by the Servicer or
a
Subservicer (and its successors and assigns) in the name of the Indenture
Trustee for the benefit of the Noteholders. Such Servicing Accounts shall be
Eligible Accounts and if permitted by applicable law, invested in Eligible
Investments held in trust by the Servicer or a Subservicer as described above
and maturing, or be subject to redemption or withdrawal, no later than the
date
on which such funds are required to be withdrawn, and in no event later than
45
days after the date of investment; withdrawals of amounts from the Servicing
Accounts may be made only to effect timely payment of taxes, assessments,
insurance premiums, or comparable items, to reimburse the Servicer or a
Subservicer for any advances made with respect to such items, to refund to
any
Mortgagors any sums as may be determined to be overages, to pay interest, if
required, to Mortgagors on balances in the Servicing Accounts or to clear and
terminate the Servicing Accounts at or any time after the termination of this
Servicing Agreement.
Section
3.09 Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
Servicer shall provide, and shall cause any Subservicer to provide, to the
Master Servicer, the Owner Trustee and the Indenture Trustee or its designee
access to the documentation regarding the related Mortgage Loans and REO
Property and to the Noteholders, the FDIC, and the supervisory agents and
examiners of the FDIC access to the documentation regarding the related Mortgage
Loans required by applicable regulations, such access being afforded without
charge but only upon reasonable request and during normal business hours at
the
offices of the Servicer or the Subservicers that are designated by these
entities; provided,
however,
that,
unless otherwise required by law, the Servicer or the Subservicer shall not
be
required to provide access to such documentation if the provision thereof would
violate the legal right to privacy of any Mortgagor; provided,
further,
however,
that
the Master Servicer, the Owner Trustee and the Indenture Trustee shall
coordinate their requests for such access so as not to impose an unreasonable
burden on, or cause an unreasonable interruption of, the business of the
Servicer or any Subservicer. The Servicer and the Subservicers shall allow
representatives of the above entities to photocopy any of the documentation
and
shall provide equipment for that purpose at a charge that covers their own
actual out-of-pocket costs.
Section
3.10 Maintenance
of Primary Insurance Policies; Collection Thereunder.
The
Servicer shall, or shall cause the related Subservicer to, exercise its best
reasonable efforts to maintain and keep in full force and effect each Primary
Insurance Policy by a Qualified Insurer with respect to each Mortgage Loan
as to
which as of the Cut-off Date a Primary Insurance Policy was in effect and the
original principal amount of the related Mortgage Note exceeded 80% of the
Original Value in an amount at least equal to the excess of such original
principal amount over 75% of such Original Value until the principal amount
of
any such first lien Mortgage Loan is reduced below 80% of the Original Value
or,
based upon a new appraisal, the principal amount of such first lien Mortgage
Loan represents less than 80% of the new appraised value of the related
Mortgaged Property. The Servicer shall, or shall cause the related Subservicer
to, effect the timely payment of the premium on each Primary Insurance Policy.
The Servicer and the related Subservicer shall have the power to substitute
for
any Primary Insurance Policy another substantially equivalent policy issued
by
another Qualified Insurer.
Section
3.11 Maintenance
of Hazard Insurance and Fidelity Coverage.
(a) The
Servicer shall maintain and keep, or cause each Subservicer to maintain and
keep, with respect to each Mortgage Loan and REO Property, in full force and
effect hazard insurance (fire insurance with extended coverage) equal to at
least the lesser of the Stated Principal Balance of the Mortgage Loan (including
any cumulative related Negative Amortization) or the current replacement cost
of
the related Mortgaged Property, and containing a standard mortgagee clause,
provided,
however,
that
the amount of hazard insurance may not be less than the amount necessary to
prevent loss due to the application of any co-insurance provision of the related
policy. Unless applicable state law requires a higher deductible, the deductible
on such hazard insurance policy may be no more than $1,000 or 1% of the
applicable amount of coverage, whichever is less. In the case of a condominium
unit or a unit in a planned unit development, the required hazard insurance
shall take the form of a multi-peril policy covering the entire condominium
project or planned unit development, in an amount equal to at least 100% of
the
insurable value based on replacement cost.
(b) Any
amounts collected by the Servicer or a Subservicer under any such hazard
insurance policy (other than amounts to be applied to the restoration or repair
of the Mortgaged Property or amounts released to the Mortgagor in accordance
with the Servicer’s or a Subservicer’s normal servicing procedures, the Mortgage
Note, the Security Instrument or applicable law) shall be deposited initially
in
a Protected Account, for transmittal to the Payment Account, subject to
withdrawal pursuant to Section 3.07.
(c) Any
cost
incurred by a Servicer or a Subservicer in maintaining any such hazard insurance
policy shall not be added to the amount owing under the Mortgage Loan for the
purpose of calculating monthly distributions to the Securities Administrator,
notwithstanding that the terms of the Mortgage Loan so permit. Such costs shall
be recoverable by the Servicer or a Subservicer out of related late payments
by
the Mortgagor or out of Insurance Proceeds or Liquidation Proceeds or by the
Servicer from the Repurchase Price, or as otherwise provided in Section
3.07.
(d) No
earthquake or other additional insurance is to be required of any Mortgagor
or
maintained on property acquired with respect to a Security Instrument other
than
pursuant to such applicable laws and regulations as shall at any time be in
force and shall require such additional insurance. When, at the time of
origination of a Mortgage Loan or at any subsequent time, the Mortgaged Property
is located in a federally designated special flood hazard area, the Servicer
shall use its best reasonable efforts to cause with respect to the related
Mortgage Loans and each REO Property flood insurance (to the extent available
and in accordance with mortgage servicing industry practice) to be maintained.
Such flood insurance shall cover the related Mortgaged Property, including
all
items taken into account in arriving at the Appraised Value on which the related
Mortgage Loan was based, and shall be in an amount equal to the lesser of (i)
the Stated Principal Balance of the related Mortgage Loan (including any
cumulative related Negative Amortization) and (ii) the minimum amount required
under the terms of coverage to compensate for any damage or loss on a
replacement cost basis, but not more than the maximum amount of such insurance
available for the related Mortgaged Property under either the regular or
emergency programs of the National Flood Insurance Program (assuming that the
area in which such Mortgaged Property is located is participating in such
program). Unless applicable state law requires a higher deductible, the
deductible on such flood insurance may not exceed $1,000 or 1% of the applicable
amount of coverage, whichever is less.
(e) If
insurance has not been maintained complying with Subsections 3.11 (a) and (d)
and there shall have been a loss which would have been covered by such insurance
had it been maintained, the Servicer shall pay, or cause the related Subservicer
to pay, for any necessary repairs.
(f) The
Servicer shall present, or cause the related Subservicer to present, claims
under any applicable Primary Insurance Policy, Lender Paid Mortgage Insurance
Policy or the related hazard insurance or flood insurance policy.
(g) The
Servicer shall obtain and maintain at its own expense and for the duration
of
this Servicing Agreement and shall cause each Subservicer to obtain and maintain
a blanket fidelity bond and an errors and omissions insurance policy covering
such Person’s officers, employees and other persons acting on its behalf in
connection with its activities under this Servicing Agreement or the related
Subservicing Agreement. The amount of coverage shall be at least equal to the
coverage maintained by the Servicer acceptable to Xxxxxx Xxx or Xxxxxxx Mac
to
service loans for it or otherwise in an amount as is commercially available
at a
cost that is generally not regarded as excessive by industry standards. The
Servicer shall promptly notify the Master Servicer of any material change in
the
terms of such bond or policy. The Servicer shall provide annually to the Master
Servicer a certificate of insurance that each such bond and policy are in
effect. If any such bond or policy ceases to be in effect, the Servicer shall,
to the extent possible, give the Master Servicer ten days’ notice prior to any
such cessation and the Servicer shall use its reasonable best efforts to obtain
a comparable replacement bond or policy, as the case may be. Any amounts
relating to the Mortgage Loans collected under each such bond or policy shall
be
deposited initially in a Protected Account for transmittal to the Payment
Account, subject to withdrawal pursuant to Section 3.07.
Section
3.12 Due-on-Sale
Clauses; Assumption Agreements.
(a) In
any
case in which the Servicer is notified by any Mortgagor or Subservicer that
a
Mortgaged Property relating to a Mortgage Loan has been or is about to be
conveyed by the Mortgagor, the Servicer shall enforce, or shall instruct such
Subservicer to enforce, any due-on-sale clause contained in the related Security
Instrument to the extent permitted under the terms of the related Mortgage
Note
and by applicable law. The Servicer or the related Subservicer may repurchase
a
Mortgage Loan at the Repurchase Price when the Servicer requires acceleration
of
the Mortgage Loan, but only if the Servicer is satisfied, as evidenced by an
Officer’s Certificate delivered to the Master Servicer, that either (i) such
Mortgage Loan is in default or default is reasonably foreseeable or (ii) if
such
Mortgage Loan is not in default or default is not reasonably foreseeable, such
repurchase will have no adverse tax consequences for the Trust Estate or any
Securityholder. If the Servicer reasonably believes that such due-on-sale clause
cannot be enforced under applicable law or if the Mortgage Loan does not contain
a due-on-sale clause, the Servicer is authorized, and may authorize any
Subservicer, to consent to a conveyance subject to the lien of the Mortgage,
and
to take or enter into an assumption agreement from or with the Person to whom
such property has been or is about to be conveyed, pursuant to which such Person
becomes liable under the related Mortgage Note and unless prohibited by
applicable state law, such Mortgagor remains liable thereon, on condition,
however, that the related Mortgage Loan shall continue to be covered by a hazard
policy and (if so covered before the Servicer or the related Subservicer enters
into such agreement) by any Primary Insurance Policy. In connection with any
such assumption, no material term of the related Mortgage Note may be changed.
The Servicer shall forward to the Indenture Trustee the original copy of such
assumption agreement, which copy shall be added by the Indenture Trustee to
the
related Mortgage File and which shall, for all purposes, be considered a part
of
such Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. A portion, equal to up to 2% of the Stated
Principal Balance of the related Mortgage Loan, of any fee or additional
interest collected by the Servicer or the related Subservicer for consenting
in
any such conveyance or entering into any such assumption agreement may be
retained by the Servicer or related Subservicer as additional servicing
compensation.
(b) Notwithstanding
the foregoing paragraph or any other provision of this Servicing Agreement,
the
Servicer shall not be deemed to be in default, breach or any other violation
of
its obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or any conveyance by the Mortgagor of the related Mortgaged
Property or assumption of a Mortgage Loan which the Servicer reasonably believes
it may be restricted by law from preventing, for any reason whatsoever or if
the
exercise of such right would impair or threaten to impair any recovery under
any
applicable insurance policy.
Section
3.13 Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall, or shall direct the related Subservicer to, foreclose upon
or
otherwise comparably convert the ownership of properties securing any Mortgage
Loans that come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.06, except that the Servicer shall not, and shall not direct the
related Subservicer to, foreclose upon or otherwise comparably convert a
Mortgaged Property if there is evidence of toxic waste or other environmental
hazards thereon unless the Servicer follows the procedures in Subsection (e)
below. The
Servicer, on behalf of the Trust, may also, in its discretion, as an alternative
to foreclosure, sell defaulted Mortgage Loans at fair market value to
third-parties, if the Servicer reasonably believes that such sale would maximize
proceeds to the Trust (on a present value basis) with respect to each such
Mortgage Loan.
(b) The
Servicer shall foreclose or shall direct the related Subservicer to foreclose
on
any Mortgaged Property in the name of the Indenture Trustee for the benefit
of
the Noteholders.
(c) In
connection with such foreclosure or other conversion, the Servicer in
conjunction with the related Subservicer, if any, shall use its best reasonable
efforts to preserve REO Property and to realize upon defaulted Mortgage Loans
in
such manner (including short sales) as to maximize the receipt of principal
and
interest by the Noteholders, taking into account, among other things, the timing
of foreclosure and the considerations set forth in Subsection 3.13(d). The
foregoing is subject to the proviso that the Servicer shall not be required
to
expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines in good faith (i) that such
restoration or foreclosure will increase the proceeds of liquidation of the
Mortgage Loan to the Noteholders after reimbursement to itself for such expenses
and (ii) that such expenses will be recoverable to it either through Liquidation
Proceeds (respecting which it shall have priority for purposes of reimbursements
from the Protected Account pursuant to Section 3.07) or through Insurance
Proceeds (respecting which it shall have similar priority). The Servicer shall
be responsible for all other costs and expenses incurred by it in any such
proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof (as well as its normal servicing
compensation). Any income from or other funds (net of any income taxes)
generated by REO Property shall be deemed for purposes of this Servicing
Agreement to be Insurance Proceeds.
(d) The
Trust
Estate shall not acquire any real property (or any personal property incident
to
such real property) except in connection with a default or reasonably
foreseeable default of a Mortgage Loan. In the event that the Trust Estate
acquires any real property (or personal property incident to such real property)
in connection with a default or imminent default of a Mortgage Loan, such
property shall be disposed of by the Servicer (or its agent) on behalf of the
Trust Estate within two years after its acquisition by the Trust
Estate.
(e) With
respect to any Mortgage Loan as to which the Servicer or a Subservicer has
received notice of, or has actual knowledge of, the presence of any toxic or
hazardous substance on the Mortgaged Property, the Servicer shall promptly
notify the Master Servicer and shall act in accordance with any directions
and
instructions provided by the Master Servicer. If the Master Servicer has not
provided directions and instructions to the Servicer in connection with any
such
Mortgage Loan within 30 days of a request by the Servicer for such directions
and instructions, then the Servicer shall take such action as it deems to be
in
the best economic interest of the Trust Estate (other than proceeding against
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage. The parties hereto acknowledge that the Servicer shall not obtain
on
behalf of the Issuing Entity a deed as a result or in lieu of foreclosure,
and
shall not otherwise acquire possession of or title to, or commence any
proceedings to acquire possession of or title to, or take any other action
with
respect to, any Mortgaged Property, if the Master Servicer, the Owner Trustee
or
the Indenture Trustee could reasonably be considered to be a responsible party
for any liability arising from the presence of any toxic or hazardous substance
on the Mortgaged Property.
Section
3.14 Indenture
Trustee to Cooperate; Release of Mortgage Files.
(a) Upon
payment in full of any Mortgage Loan or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Indenture Trustee by
a
certification signed by a Servicing Officer in the form of the request for
release “Request for Release”) attached hereto as Exhibit B (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited
in
the Protected Account have been so deposited) and shall request delivery to
the
Servicer or Subservicer, as the case may be, of the related Mortgage File.
Upon
receipt of such certification and request, the Indenture Trustee shall release
the related Mortgage File to the Servicer or Subservicer and execute and deliver
to the Servicer, without recourse, representation or warranty the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Security Instrument (furnished by
the
Servicer), together with the Mortgage Note. In connection with the satisfaction
of any MOM Loan, the Servicer is authorized to cause the removal from the
registration on the MERS7
System
of such Mortgage.
(b) From
time
to time as is appropriate, for the servicing or foreclosure of any Mortgage
Loan
or collection under an insurance policy, the Servicer may deliver to the
Indenture Trustee a Request for Release signed by a Servicing Officer on behalf
of the Servicer in substantially the form attached as Exhibit B hereto. Upon
receipt of the Request for Release, the Indenture Trustee shall deliver the
Mortgage File or any document therein to the Servicer or Subservicer, as the
case may be, as bailee for the Indenture Trustee.
(c) The
Servicer shall cause each Mortgage File or any document therein released
pursuant to Subsection 3.14(b) to be returned to the Indenture Trustee when
the
need therefor no longer exists, and in any event within 21 days of the
Servicer’s receipt thereof, unless the Mortgage Loan has become a Liquidated
Mortgage Loan and the Liquidation Proceeds relating to the Mortgage Loan have
been deposited in the Protected Account or such Mortgage File is being used
to
pursue foreclosure or other legal proceedings. Prior to return of a Mortgage
File or any document to the Indenture Trustee, the Servicer, the related insurer
or Subservicer to whom such file or document was delivered shall retain such
file or document in its respective control as bailee for the Indenture Trustee
unless the Mortgage File or such document has been delivered to an attorney,
or
to a public trustee or other public official as required by law, to initiate
or
pursue legal action or other proceedings for the foreclosure of the related
Mortgaged Property either judicially or non- judicially, and the Servicer has
delivered to the Indenture Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such delivery.
If
a Mortgage Loan becomes a Liquidated Mortgage Loan, the Servicer shall deliver
the Request for Release with respect thereto to the Indenture Trustee and,
upon
deposit of the related Liquidation Proceeds in the Protected Account, as
certified to the Indenture Trustee, the Indenture Trustee, shall deliver the
related Mortgage File or any document therein to the Servicer or Subservicer,
as
applicable.
(d) The
Indenture Trustee shall execute and deliver to the Servicer any court pleadings,
requests for trustee’s sale or other documents prepared and delivered to the
Indenture Trustee for execution necessary to (i) the foreclosure or trustee’s
sale with respect to a Mortgaged Property; (ii) any legal action brought to
obtain judgment against any Mortgagor on the Mortgage Note or Security
Instrument; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or Security
Instrument or otherwise available at law or equity. Together with such documents
or pleadings the Servicer shall deliver to the Indenture Trustee a certificate
of a Servicing Officer in which it requests the Indenture Trustee to cause
to be
executed the pleadings or documents. The Indenture Trustee and any officer,
director, employee or agent of the Indenture Trustee may rely in good faith
on
any such document submitted by the Servicer. The certificate shall certify
and
explain the reasons for which the pleadings or documents are required. It shall
further certify that the execution and delivery of the pleadings or documents
will not invalidate any insurance coverage under the insurance policies or
invalidate or otherwise affect the lien of the Security Instrument, except
for
the termination of such a lien upon completion of the foreclosure or trustee’s
sale.
Section
3.15 Servicing
Compensation.
(a) As
compensation for its activities hereunder, the Servicer shall be entitled to
receive the Servicing Fee from full payments of accrued interest on each
Mortgage Loan or as otherwise provided in Section 3.07. The Servicer shall
be
solely responsible for paying any and all fees with respect to a Subservicer
and
neither the Master Servicer nor the Indenture Trustee shall bear any fees,
expenses or other costs directly associated with any Subservicer.
(b) The
Servicer may retain additional servicing compensation in the form of a portion
of the assumption fees, up to 2% of the Stated Principal Balance of the related
Mortgage Loan, fees for statement of account or payoff, late payment charges
or
otherwise, to the extent such fees are collected from the related Mortgagors
or,
with respect to a Liquidated Mortgage Loan, to the extent such fees have
accrued. The Servicer shall be required to pay all expenses it incurs in
connection with servicing activities under this Servicing Agreement and shall
not be entitled in connection with servicing activities under this Servicing
Agreement to reimbursement except as provided in this Servicing Agreement.
Expenses to be paid by the Servicer under this Subsection 3.15(b) shall include
payment of the expenses of the accountants retained pursuant to Section
3.17.
Section
3.16 Reserved.
Section
3.17 Reserved.
Section
3.18 Optional
Purchase of Defaulted Mortgage Loans.
(a) The
Servicer may, but is not obligated to, repurchase from the Issuer any Mortgage
Loan delinquent in payment for a period of 90 days or longer for a price equal
to the Repurchase Price. Notwithstanding the foregoing, the Indenture Trustee,
whether acting as Indenture Trustee or in the capacity of successor Master
Servicer, shall have no obligation hereunder or under any other Basic Document
to repurchase any Mortgage Loan.
(b) The
Servicer shall have the option at any one time to purchase a minimum of five
(5)
Mortgage Loans from the Trust Estate with an aggregate Stated Principal Balance
up to 1% of the aggregate Stated Principal Balance of all of the Mortgage Loans
included in the Trust Estate on such date at a price equal to the aggregate
fair
market value of such Mortgage Loans.
In the
event that this option is exercised as to any five or more Mortgage Loans,
this
option will thereupon terminate. This option is not revocable by the Servicer.
Section
3.19 Information
Required by the Internal Revenue Service Generally and Reports of Foreclosures
and Abandonments of Mortgaged Property.
The
Servicer shall prepare and deliver all federal and state information reports
when and as required by all applicable state and federal income tax laws. In
particular, with respect to the requirement under Section 6050J of the Code
to
the effect that the Servicer or a Subservicer shall make reports of foreclosures
and abandonments of any mortgaged property for each year beginning in 2006,
the
Servicer or Subservicer shall file reports relating to each instance occurring
during the previous calendar year in which the Servicer or such Subservicer
(i)
acquires an interest in any Mortgaged Property through foreclosure or other
comparable conversion in full or partial satisfaction of a Mortgage Loan, or
(ii) knows or has reason to know that any Mortgaged Property has been abandoned.
The reports from the Servicer or Subservicer shall be in form and substance
sufficient to meet the reporting requirements imposed by Section 6050J, Section
6050H (reports relating to mortgage interest received) and Section 6050P of
the
Code (reports relating to cancellation of indebtedness).
Section
3.20 Fair
Credit Reporting Act.
The
Servicer, in its capacity as Servicer for each Mortgage Loan, agrees to fully
furnish in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit reporsitories), on a monthly
basis.
Section
3.21 Waiver
of Prepayment Charges.
Except
as
provided below, the Servicer or any designee of the Servicer shall not waive
any
prepayment charge with respect to any Mortgage Loan. If the Servicer or any
Subservicer fails to collect a prepayment charge at the time of the related
prepayment of any Mortgage Loan subject to such prepayment charge, the Servicer
shall deposit to the Protected Account at the time of payoff an amount equal
to
the amount of the prepayment charge not collected. Notwithstanding the above,
the Servicer or any Subservicer may waive a prepayment charge only if (i) such
waiver is standard and customary in servicing similar mortgage loans to the
Mortgage Loans (including any waiver of a prepayment charge in connection with
a
refinancing of a Mortgage Loan related to a default or a reasonably foreseeable
default), and (ii) such waiver, in the reasonable judgment of the Servicer,
would maximize recovery of total proceeds from the Mortgage Loan, taking into
account the value of such prepayment charge and the related Mortgage Loan.
In no
event will the Servicer waive a prepayment charge in connection with a
refinancing of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default. If a prepayment charge is waived as permitted by meeting
the standards described above, then the Servicer is required to pay the amount
of such waived prepayment charge, for the benefit of the Holders of the Notes,
by depositing such amount into the Protected Account together with and at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Protected Account.
Within
90
days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of the representation or covenant of the Servicer set
forth in this Section 3.21 which materially and adversely affects the interests
of the Holders of the Notes in any prepayment charge, the Servicer shall remedy
such breach as follows: if any of the covenants made by the Servicer in this
Section 3.21 is breached, the Servicer must pay the amount of such waived
prepayment charge, for the benefit of the Holders of the Notes, by depositing
such amount into the Protected Account.
ARTICLE
IV
SERVICING
CERTIFICATE
Section
4.01 Remittance
Reports.
Not
later
than the tenth (10th) calendar day, or if such day is not a Business Day, the
first Business Day immediately preceding the tenth calendar day of the month
of
the related Remittance Date, the Servicer shall furnish to the Master Servicer,
a monthly remittance advice in the format set forth in Exhibit D attached hereto
(or in such other format mutually agreed to by the Master Servicer and the
Servicer), with regard to monthly loan remittance data and a report containing
the information required by Exhibit E (or in such other format mutually agreed
to by the Master Servicer and the Servicer) with respect to defaulted mortgage
loans, with a trial balance report attached thereto, and such other loan level
information reasonably available to the Servicer and requested by the Master
Servicer.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Indenture Trustee pursuant to a deed-in-lieu of foreclosure, the Servicer shall
submit to the Master Servicer a liquidation report in the format set forth
in
Exhibit F attached hereto (or in such other format mutually agreed to by the
Servicer and Master Servicer) with respect to such Mortgaged Property and all
supporting documentation reasonably required by the Master Servicer. The Master
Servicer shall review and approve all Realized Loss calculations contained
in
such liquidation report.
The
Servicer shall also provide reports on the status of REO Property containing
such information as the Master Servicer may reasonably require.
Section
4.02 Reserved.
Section
4.03 Reserved.
Section
4.04 Advances.
If
any
Monthly Payment on a Mortgage Loan that was due on the immediately preceding
Due
Date or due during the related Due Period and delinquent on a Determination
Date
is delinquent other than as a result of application of the Relief Act, the
Servicer will deposit in the Protected Account not later than the related
Servicer Remittance Date an amount equal to such Monthly Payment net of the
related Servicing Fee for such Mortgage Loan, except to the extent the
Servicer or
the
related Subservicer determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on any Mortgage
Loan. Subject to the foregoing and in the absence of such a determination,
the
Servicer shall continue to make such advances through the date that the related
Mortgaged Property or REO Property has, in the judgment of the Servicer, been
completely liquidated. No later than the fourth Business Day preceding each
Payment Date, the Servicer shall present an Officer’s Certificate to the Master
Servicer with respect to the Mortgage Loans, (i) stating that the Servicer
elects not to make a Monthly Advance in a stated amount and (ii) detailing
the
reason it deems the advance to be a Nonrecoverable Advance. The Servicer will
include in the Remittance Report a list of each Mortgage Loan for which it
does
not make a Monthly Advance in accordance with this Section.
Such
Monthly Advances may be made in whole or in part from funds in the Protected
Account being held for future distribution or withdrawal on or in connection
with Payment Dates in subsequent months. Any funds being held for future
distribution to Securityholders and so used shall be replaced by the Servicer
from its own funds by deposit in the Protected Account prior to the related
Servicer Remittance Date to the extent that funds in the Protected Account
with
respect to the related Payment Date shall be less than payments to
Securityholders required to be made on such date.
Section
4.05 Compensating
Interest Payments.
The
Servicer shall deposit in the Protected Account not later than the Servicer
Remittance Date an amount equal to the Compensating Interest for the related
Determination Date. The Servicer shall not be entitled to any reimbursement of
any Compensating Interest payment.
Section
4.06 Servicer
Compliance Statement.
(a) The
Servicer, at its own expense, shall deliver (and shall cause any Servicing
Function Participant engaged by it to deliver) to the Sponsor, the Securities
Administrator and the Depositor on or before March 15 of each year, commencing
in March 2007, an Officer’s
Certificate stating, as to the signer thereof, that (A) a review of such party’s
activities during the preceding calendar year or portion thereof and of such
party’s performance under this Servicing Agreement, or such other applicable
agreement in the case of any Servicing Function Participant engaged by it,
has
been made under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Servicing Agreement or such other applicable agreement in the case
of
any Servicing Function Participant engaged by it, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof Promptly after
receipt of each such Officer’s Certificate, the Sponsor and
Master Servicer shall review such Officer’s Certificate and, if applicable,
consult with each such party,
as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of any Servicing
Function Participant engaged by it, under such other applicable
agreement.
(b) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the Servicer to comply timely with this Section 4.06 shall be deemed
a Servicing Default, automatically, without notice and without any cure period,
and the Master Servicer shall,
at the
direction of the Sponsor, terminate all the rights and obligations of the
Servicer under this Servicing Agreement and in and to the Mortgage Loans and
the
proceeds thereof without compensating the Servicer for the same. This paragraph
shall supersede any other provision in this Servicing Agreement or any other
agreement to the contrary.
(c) Unless
available on the Servicer’s or the Securities Administrator’s website, copies of
such Servicer annual statements of compliance shall be provided to any
Noteholder
upon request, by the Servicer or by the Master
Servicer at the Servicer’s expense if the Servicer failed to provide such copies
(unless (i) the Servicer shall have failed to provide the Master Servicer with
such statement or (ii) the Master Servicer shall be unaware of the Servicer’s
failure to provide such statement).
Section
4.07 Report
on Assessments of Compliance and Attestation.
(a) By
March
15 of each year, commencing in March 2007, the Servicer, at its own expense,
shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Master
Servicer, the Securities Administrator and the Sponsor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria with respect to the prior calendar year, including, if there has been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) No
later
than the end of each calendar year for which a Form 10-K is required to be
filed, the Servicer shall forward to the Master Servicer and the Securities
Administrator the name of each Servicing Function Participant engaged by it
and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the Servicer
(or any Servicing Function Participant engaged by it) submits its assessments
to
the Master Servicer and Securities Administrator, it shall also at such time
include the assessment (and attestation pursuant to Section 4.08) of each
Servicing Function Participant engaged by it.
(c) The
Servicer shall not be required to deliver any such assessments until April
15 in
any given year so long as it has received written confirmation from the
Securities Administrator that a Form 15 relating to the automatic suspension
of
reporting in respect of the Issuing Entity under the Exchange Act has been
filed.
(d) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the Servicer to comply timely with this Section 4.07 shall be deemed
a Servicing Default, automatically, without notice and without any cure period,
and the Master Servicer shall, at the direction of the Sponsor, terminate all
the rights and obligations of the Servicer under this Servicing Agreement and
in
and to the Mortgage Loans and the proceeds thereof without compensating the
Servicer for the same. This paragraph shall supersede any other provision in
this Servicing Agreement or any other agreement to the contrary.
Section
4.08 Attestation
Reports.
(a) By
March
15 of each year, commencing in March 2007, the Servicer, at its own expense,
shall cause, and each such party shall cause any Servicing Function Participant
engaged by it to cause, each at its own expense, a registered public accounting
firm (which may also render other services to the Servicer or such other
Servicing Function Participants, as the case may be) and that is a member of
the
American Institute of Certified Public Accountants to furnish a report to the
Master Servicer, the Securities Administrator and the Sponsor, to the effect
that (i) it has obtained a representation regarding certain matters from the
management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as
to
whether such party’s compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use and
not contain restricted use language.
(b) None
of
the Servicer or any Servicing Function Participant engaged by it shall be
required to deliver or cause the delivery of such reports until April 15 in
any
given year so long as it has received written confirmation from the Securities
Administrator that a Form 15 relating to the automatic suspension of reporting
in respect of the Issuing Entity under the Exchange Act has been
filed.
(c) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the Servicer to comply timely with this Section 4.08 shall be deemed
a Servicing Default, automatically, without notice and without any cure period,
and the Master Servicer shall, at the direction of the Sponsor, terminate all
the rights and obligations of the Servicer under this Servicing Agreement and
in
and to the Mortgage Loans and the proceeds thereof without compensating the
Servicer for the same. This paragraph shall supersede any other provision in
this Servicing Agreement or any other agreement to the contrary.
Section
4.09 Annual
Certification.
(a) The
Servicer shall and shall cause any Servicing Function Participant engaged by
such party to, provide to the Depositor, by March 15 of each year in which
the
Issuing Entity is subject to the reporting requirements of the Exchange Act
and
otherwise within a reasonable period of time upon request, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit C,
upon which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. In the event the Servicer or any Servicing Function Participant
engaged by such party, is terminated or resigns pursuant to the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide a Back-Up Certification to the Certifying Person pursuant to
this
Section 4.09 with respect to the period of time it was subject to this Servicing
Agreement or any other applicable agreement, as the case may be.
Section
4.10 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 4.06, 4.07,
34.08 and 4.09 of this Servicing Agreement is to facilitate compliance by the
Issuing Entity, the Sponsor, the Master Servicer and the Securities
Administrator with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance issued by the Commission
in
respect of the requirements of Regulation AB, (c) the parties shall comply
with
requests made by the Sponsor for delivery of additional or different information
as the Sponsor may determine in good faith is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this Servicing Agreement
shall be required to effect any such changes in the parties’ obligations as are
necessary to accommodate evolving interpretations of the provisions of
Regulation AB.
Section
4.11 Indemnification.
The
Servicer shall indemnify and hold harmless the Sponsor, the Issuing Entity,
the
Master Servicer, the Securities Administrator, the Indenture Trustee and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the Servicer’s obligations under this Section 4.09 hereof,
(ii) any material misstatement any material misstatement or material omission
in
any information, data or materials required to be contained in the reports
provided under this Sections 4.06, 4.07, 4.08 and 4.09, or (iii) or the
Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
ARTICLE
V
THE
SERVICER
Section
5.01 Liability
of the Servicer.
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the Servicer
herein.
Section
5.02 Merger
or Consolidation of or Assumption of the Obligations of the
Servicer.
Any
corporation into which the Servicer may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Servicer shall be a party, or any corporation
succeeding to the business of the Servicer, shall be the successor of the
Servicer hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided,
however,
that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to and service mortgage loans for Xxxxxx Xxx or Xxxxxxx
Mac.
The
Servicer may assign its rights and delegate its duties and obligations under
this Servicing Agreement; provided,
that
the Person accepting such assignment or delegation (which may include Bank
of
America, N.A. or any affiliate of Bank of America, N.A.) shall be a Person
which
is qualified to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac,
and (except in the case of Bank of America, N.A. or an affiliate of Bank of
America, N.A.) is reasonably satisfactory to the Master Servicer, is willing
to
service the Mortgage Loans and executes and delivers to the Master Servicer,
the
Issuing Entity and the Indenture Trustee an agreement, in form and substance
reasonably satisfactory to the Master Servicer, which contains an assumption
by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Servicer under this Servicing
Agreement; provided,
further,
that
each Rating Agency’s rating of the applicable Notes in effect immediately prior
to such assignment and delegation will not be qualified, reduced, or withdrawn
as a result of such assignment and delegation (as evidenced by a letter to
such
effect from each Rating Agency) or considered to be below investment
grade.
Section
5.03 Limitation
on Liability of the Servicer and Others.
The
Servicer shall immediately notify the Master Servicer if a claim is made by
a
third party with respect to this Agreement or the Mortgage Loans, assume the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or
decree which may be entered in respect of such claim. The Servicer agrees that
it will not enter into the settlement of any such claim
if such
settlement would materially and adversely affect the interests of the
Noteholders. The Servicer shall be entitled to reimbursement of any such costs
and expenses from funds in the Protected Account, unless such claim relates
to a
matter for which the Servicer is required to indemnify the Issuing Entity,
the
Indenture Trustee, the Owner Trustee or the Master Servicer pursuant to Section
5.06. Neither the Servicer nor any of the directors or officers or employees
or
agents of the Servicer shall be under any liability to the Master Servicer,
the
Owner Trustee, the Issuing Entity and the Indenture Trustee for any action
taken
or for refraining from the taking of any action in good faith pursuant to this
Servicing Agreement, provided,
however,
that
this provision shall not protect the Servicer or any such Person against any
liability which would otherwise be imposed by reason of its willful misfeasance,
bad faith or gross negligence in the performance of its duties hereunder or
by
reason of its reckless disregard of its obligations and duties hereunder. The
Servicer and any director or officer or employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The Servicer’s right to indemnity or reimbursement pursuant to this Section 5.03
shall survive any resignation or termination of the Servicer pursuant to
Sections 5.04 or 6.01 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination).
Section
5.04 Servicer
Not to Resign.
Subject
to the provisions of Section 5.02, the Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) upon determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law (any such determination permitting the resignation of
the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to
the Master Servicer) or (ii) upon satisfaction of the following conditions:
the
Servicer has proposed a successor servicer to the Master Servicer in writing
and
such proposed successor servicer is reasonably acceptable to the Master
Servicer; provided,
however,
that no
such resignation by the Servicer shall become effective until such successor
servicer shall have assumed the Servicer’s responsibilities and obligations
hereunder or another successor servicer has been appointed in accordance with
Section 6.02 and has accepted such appointment. Any such resignation shall
not
relieve the Servicer of responsibility for any of the obligations specified
in
Sections 6.01 and 6.02 as obligations that survive the resignation or
termination of the Servicer. The Servicer shall have no claim (whether by
subrogation or otherwise) or other action against any Noteholder for any amounts
paid by the Servicer pursuant to any provision of this Servicing
Agreement.
Notwithstanding
anything to the contrary herein, the Servicer may pledge or assign as collateral
all its rights, title and interest under this Servicing Agreement to a lender
(the “Servicing Rights Pledgee”), provided, that:
(1) upon
a
Servicing Default and receipt of a notice of termination by the Servicer, the
Servicing Rights Pledgee may direct the Servicer or its designee to appoint
a
successor servicer pursuant to the provisions, and subject to the conditions,
set forth in Section 6.02 regarding the appointment of a successor
servicer;
(2) the
Servicing Rights Pledgee’s rights are subject to this Servicing Agreement;
and
(3) the
Servicer shall remain subject to termination as Servicer under this Servicing
Agreement pursuant to the terms hereof.
Section
5.05 Delegation
of Duties.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those with which
the Servicer complies pursuant to Section 3.01. Such delegation shall not
relieve the Servicer of its liabilities and responsibilities with respect to
such duties and shall not constitute a resignation within the meaning of Section
5.04.
Section
5.06 Indemnification.
(a) The
Servicer agrees to indemnify each of the Master Servicer, the Issuing Entity,
the Owner Trustee and the Indenture Trustee for and to hold each of the Master
Servicer, the Issuing Entity, the Owner Trustee and the Indenture Trustee
harmless against, any claim, tax, penalty, loss, liability or expense of any
kind whatsoever, incurred without negligence or willful misconduct on its part,
arising
out of, or in connection with, the failure by the Servicer to perform its duties
in compliance with this Servicing Agreement or incurred by reason of the
Servicer’s willful misfeasance, bad faith, gross negligence or reckless
disregard of the performance of its duties hereunder.
In
addition to the indemnification set forth in the previous sentence, the Servicer
shall indemnify and hold each of the Master Servicer, the Issuing Entity, the
Owner Trustee and the Indenture Trustee harmless from and against any and all
claims, losses, damages, penalties, fines, forfeitures, legal fees and related
costs, judgments, and any other costs, fees and expenses resulting from or
related to any act or omission to act of any prior servicer, owner or originator
of a Mortgage Loan or Mortgaged Property (or any other Person) prior to the
transfer of servicing to the Master Servicer in accordance with Section 6.02
hereunder, provided that:
(i) with
respect to any such claim, the Master Servicer, the Issuing Entity, the Owner
Trustee or the Indenture Trustee, as applicable, shall have given the Servicer
written notice thereof promptly after the Master Servicer, the Issuing Entity,
the Owner Trustee or the Indenture Trustee, as applicable, shall have actual
knowledge thereof, it being understood that failure to give such notice shall
not relieve the Servicer of its indemnification obligations
hereunder;
(ii) while
maintaining control over its own defense, the Master Servicer, the Issuing
Entity, the Owner Trustee or the Indenture Trustee, as applicable, shall
cooperate and consult fully with the Servicer in preparing such defense;
and
(iii) notwithstanding
anything in this Servicing Agreement to the contrary, the Servicer shall not
be
liable for settlement of any claim by the Master Servicer, the Issuing Entity,
the Owner Trustee or the Indenture Trustee, as applicable, entered into without
the prior consent of the Servicer, which consent shall not be unreasonably
withheld.
(b) The
Master Servicer agrees to indemnify the Owner Trustee and the Indenture
Trustee for,
and
to hold the Owner Trustee and the Indenture Trustee, harmless against, any
claim, tax, penalty, loss, liability or expense of any kind whatsoever, in
connection with their respective duties under any of the Basic Documents, except
to the extent that such claim, tax, penalty, loss liability or expense is (i)
caused by the Owner Trustee’s or the Indenture Trustee’s, as the case may be,
own willful misconduct, gross negligence or bad faith or (ii) solely with
respect to the Owner Trustee, incurred as a result of the inaccuracy of any
representation or warranty contained in Section 6.03 of the Trust Agreement
expressly made by the Owner Trustee.
(c) No
termination of this Servicing Agreement or the resignation or removal of the
Servicer shall affect the obligations created by this Section 5.06 of the
Servicer to indemnify the Master Servicer, the Issuing Entity, the Owner Trustee
and the Indenture Trustee under the conditions and to the extent set forth
herein. This section shall survive the termination of this Servicing Agreement
and the resignation or removal of the Servicer and the Indenture Trustee. Any
amounts to be paid by the Servicer pursuant to this Subsection may not be paid
from the Trust Estate.
Section
5.07 Duties
of the Servicer With Respect to the Indenture.
(a) The
Servicer shall take all appropriate action that is the duty of the Issuing
Entity to take with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(i) causing
the preparation of the Notes (for execution by the Owner Trustee) upon their
initial issuance and causing the preparation of an Issuing Entity Request (for
execution by the Owner Trustee) for delivery to the Securities Administrator
regarding the authentication of the Notes (Section 2.02);
(ii) causing
the preparation of an Issuing Entity Request and Officer’s Certificate (and
executing the same on behalf of the Issuing Entity) and the obtaining of an
Opinion of Counsel and Independent Certificates, if necessary, for the release
of the Collateral (Section 8.05);
(iii) causing
the preparation of Issuing Entity Requests (and executing the same on behalf
of
the Issuing Entity) and the obtaining of Opinions of Counsel with respect to
the
execution of supplemental indentures;
(iv) causing
the preparation and obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral
(Sections 8.05 and 10.01);
(v) the
delivery of notice to the Indenture Trustee and the Rating Agencies of each
Event of Default under the Indenture and under the Trust Agreement (Sections
3.24 and 5.01);
(vi) the
annual delivery of Opinions of Counsel, in accordance with Section 3.07 of
the
Indenture, as to the Trust Estate, and the annual delivery and execution of
the
Officers’ Certificate (Section 3.10);
(vii) causing
the preparation and execution of an Officer’s Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate relating thereto with
respect to any request by the Issuing Entity to the Indenture Trustee to take
any action under the Indenture (Sections 4.10 and 10.01);
(viii) obtaining
and preserving the Issuing Entity’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of the Indenture, the Notes, the Mortgage Loans
and
each other instrument and agreement included in the Trust Estate (Section
3.04).
(b) In
addition to the duties of the Servicer set forth above, the Servicer shall
prepare for execution by the Issuing Entity or shall cause the preparation
by
other appropriate persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuing Entity to
prepare, file or deliver pursuant to the Basic Documents, and at the request
of
the Owner Trustee or the Indenture Trustee (who is in no event obligated to
make
such requests or direction) shall take all appropriate action that it is the
duty of the Issuing Entity to take pursuant to the Basic Documents. In
accordance with the directions of the Owner Trustee or Indenture Trustee (who
is
in no event obligated to make such requests or direction), the Servicer shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Basic Documents) as are not
covered by any of the foregoing provisions and as are expressly requested by
the
Owner Trustee or the Indenture Trustee (who is in no event obligated to make
such requests or direction) and are reasonably within the capability of the
Servicer.
Section
5.08 Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Indenture Trustee is required to obtain, verify and record
certain information relating to individuals and entities with maintain a
business relationship with the Indenture Trustee. Accordingly, each of the
parties agrees to provide to the Indenture Trustee upon its request from time
to
time such party’s complete name, address, tax identification number and such
other identifying information together with copies of such party’s constituting
documentation, securities disclosure document and such other identifying
documentation as may be available for such party.
ARTICLE
VI
DEFAULT
Section
6.01 Servicing
Default.
If
any
one of the following events (each, a AServicing
Default”) shall occur and be continuing:
(i) Any
failure by the Servicer to deposit in the Protected Account or Payment Account
any deposit required to be made under the terms of this Servicing Agreement,
including any Monthly Advances and Compensating Interest (other than Servicing
Advances), which continues unremedied for a period of one (1) Business Day
after
the date upon which written notice of such failure shall have been given to
the
Servicer by the Master Servicer; or
(ii) Failure
on the part of the Servicer duly to observe or perform in any material respect
any representation or warranty of the Servicer or any other covenants or
agreements of the Servicer (including the making of Servicing Advances) set
forth in this Servicing Agreement, which failure, in each case, materially and
adversely affects the interests of the Noteholders and which continues
unremedied for a period of 30 days after the date on which written notice of
such failure, requiring the same to be remedied, and stating that such notice
is
a ANotice
of
Default” hereunder, shall have been given to the Servicer by the Master
Servicer; or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court, agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Servicer and such decree or order shall have remained
in force undischarged, unbonded or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations;
then,
and
in every such case, so long as a Servicing Default shall not have been remedied
by the Servicer, the Master Servicer may, by notice then given to the Servicer,
terminate all of the rights and obligations of the Servicer as servicer under
this Servicing Agreement other than its right to receive servicing compensation
and expenses for servicing the Mortgage Loans hereunder during any period prior
to the date of such termination and the Master Servicer may exercise any and
all
other remedies available at law or equity. Any such notice to the Servicer
shall
also be given to the Company and the Issuing Entity. On or after the receipt
by
the Servicer of such written notice, all authority and power of the Servicer
under this Servicing Agreement, whether with respect to the Notes or the
Mortgage Loans or otherwise, shall pass to and be vested in the Master Servicer,
pursuant to and under this Section 6.01; and, without limitation, the Master
Servicer is hereby authorized and empowered to execute and deliver, on behalf
of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of each Mortgage Loan and related
documents, or otherwise. Notwithstanding the foregoing, the parties hereto
and
the Securityholders by their acceptance of any Security, acknowledge and agree
that there will be a period of transition before the actual servicing functions
can be fully transferred to the Master Servicer, as successor servicer, or
to a
successor servicer appointed by the Master Servicer pursuant to the provisions
hereof, provided, that the Master Servicer shall use its reasonable best efforts
to succeed to the actual servicing functions or find a successor servicer as
soon as possible but no later than 100 days after such termination; and provided
further that the Master Servicer shall continue to have the right to appoint
a
successor servicer after such 100-day period in accordance with Section 6.02.
The Servicer agrees to cooperate with the Master Servicer in effecting the
termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Master Servicer or the
successor servicer for administration by it of (i) the property and amounts
which are then or should be part of the Trust Estate or which thereafter become
part of the Trust Estate; (ii) originals or copies of all documents of the
Servicer reasonably requested by the Master Servicer to enable it to assume
the
Servicer’s duties thereunder and under the Subservicing Agreements; (iii) unless
terminated in accordance with this Servicing Agreement, the rights and
obligations of the Servicer under the Subservicing Agreements with respect
to
the Mortgage Loans; (iv) all cash amounts which shall at the time be deposited
by the Servicer or should have been deposited to the Protected Account, the
related Servicing Accounts or the Payment Account or thereafter be received
with
respect to the Mortgage Loans; and (v) all costs or expenses associated with
the
complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Master Servicer
or
any successor servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the Master Servicer or successor servicer to service
the Mortgage Loans properly and effectively. All
reasonable costs and expenses (including, but not limited to, attorneys’ fees
and disbursements) incurred by the Master Servicer or a successor servicer
in
connection with its succession as Servicer, or the Indenture Trustee in
accordance with such succession (as provided below), including amending this
Servicing Agreement to reflect such succession as Servicer pursuant to this
Section 6.01 shall be paid by the predecessor Servicer (or if the predecessor
Servicer is the Master Servicer, the terminated Servicer) upon presentation
of
reasonable documentation of such costs and expenses.
The
Trustee or its affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Eligible Investments, (ii) using
affiliates to effect transactions in certain Eligible Investments and (iii)
effecting transactions in certain Eligible Investments. Such compensation is
not
payable or reimbursable under this Agreement.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer shall
be entitled to receive, out of any late collection of a payment on a Mortgage
Loan which was due prior to the notice terminating the Servicer’s rights and
obligations hereunder and received after such notice, that portion to which
the
Servicer would have been entitled pursuant to Sections 3.07 and 3.15 as well
as
its Servicing Fee in respect thereof, and any other amounts payable to the
Servicer hereunder the entitlement to which arose prior to the termination
of
its activities hereunder.
The
Servicer shall immediately notify the Master Servicer in writing of the
occurrence of any Servicing Default.
Section
6.02 Master
Servicer to Act; Appointment of Successor.
(a) Within
100 days of the time the Servicer sends a notice pursuant to clause (i) of
Section 5.04, the Master Servicer, or other successor appointed in accordance
with this Section 6.02, shall be the successor in all respects to the Servicer
in its capacity as Servicer under this Servicing Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof, including but not limited to the provisions
of Article V. Nothing in this Servicing Agreement shall be construed to permit
or require the Master Servicer or any other successor servicer to (i) be
responsible or accountable for any act or omission of the predecessor Servicer,
(ii) require or obligate the Master Servicer, in its capacity as successor
servicer, to purchase, repurchase or substitute any Mortgage Loan, (iii) fund
any losses on any Eligible Investment directed by any other Servicer, or (iv)
be
responsible for the representations and warranties of the Servicer, except
as
provided herein; provided, however, that the Master Servicer, as successor
servicer, shall be required to make Monthly Advances to the extent that the
Servicer failed to make such Monthly Advances, to the extent such Monthly
Advance is not determined by the Master Servicer to be a Nonrecoverable Advance.
As compensation therefor, the Master Servicer shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such
notice of termination had been given. Notwithstanding the above, (i) if the
Master Servicer is unwilling to act as successor servicer, or (ii) if the Master
Servicer is legally unable so to act, the Master Servicer may (in the situation
described in clause (i)) or shall (in the situation described in clause (ii))
appoint or petition a court of competent jurisdiction to appoint any established
housing and home finance institution, bank or other mortgage loan servicer
having a net worth of not less than $10,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. Pending appointment of a successor
to
the Servicer hereunder, unless the Master Servicer is prohibited by law from
so
acting or is unwilling to act as such, the Master Servicer shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation which the
Servicer would otherwise have received pursuant to Section 3.15 (or such lesser
compensation as the Master Servicer and such successor shall agree). The
appointment of a successor servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Servicing Agreement prior
to its termination as Servicer (including, without limitation, the obligation
to
pay any deductible under an insurance policy pursuant to Section 3.11 or to
indemnify the Master Servicer pursuant to Section 5.06), nor shall any successor
servicer be liable for any acts or omissions of the predecessor Servicer or
for
any breach by such Servicer of any of its representations or warranties
contained herein or in any related document or agreement. The Master Servicer
and such successor shall take such action, consistent with this Servicing
Agreement, as shall be necessary to effectuate any such succession.
In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor servicer, including the Master Servicer if the Master Servicer
is acting as successor servicer, shall represent and warrant that it is a member
of MERS in good standing and shall agree to comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
Servicer shall cooperate with the successor servicer in causing MERS to revise
its records to reflect the transfer of servicing to the successor servicer
as
necessary under MERS’ rules and regulations, or (ii) the predecessor Servicer
shall cooperate with the successor servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Indenture Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan
on
the MERS7
System
to the successor servicer. The terminated Servicer shall file or cause to be
filed any such assignment in the appropriate recording office. The terminated
Servicer shall bear any and all fees of MERS, costs of preparing any assignments
of Mortgage, and fees and costs of filing any assignments of Mortgage that
may
be required under this Section 6.02. To the extent these fees and costs are
not
paid by the terminated Servicer and are incurred by any successor servicer,
such
fees and costs will be reimbursable to the successor servicer by the Trust.
The
successor servicer shall cause such assignment to be delivered to the Indenture
Trustee promptly upon receipt of the original with evidence of recording thereon
or a copy certified by the public recording office in which such assignment
was
recorded.
(b) Any
successor, including the Master Servicer, to the Servicer as servicer shall
during the term of its service as servicer (i) continue to service and
administer the Mortgage Loans for the benefit of the Securityholders, (ii)
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.11(g).
(c) Any
successor servicer, including the Master Servicer, shall not be deemed to be
in
default or to have breached its duties hereunder if the predecessor Servicer
shall fail to deliver any required deposit to the Protected Account or a
Servicing Account or otherwise cooperate with any required servicing transfer
or
succession hereunder.
(d) Notwithstanding
anything else herein to the contrary, in no event shall the Master Servicer
be
liable for any servicing fee or any differential in the amount of the servicing
fee paid hereunder and the amount necessary to induce any successor servicer
to
act as a successor servicer under this Servicing Agreement and the transactions
set forth or provided for herein.
(e) Notwithstanding
any provision in this Servicing Agreement to the contrary, for a period of
10
days following the date on which the Servicer shall have received a notice
of
termination pursuant to Section 6.01 of this Servicing Agreement, the Servicer
or its designee may appoint a successor servicer that satisfies the eligibility
criteria of a successor servicer set forth in this Section 6.02, which
appointment shall be subject to the consent of the Depositor, the Sponsor,
the
Master Servicer, and the Indenture Trustee, which consent shall not be
unreasonably withheld or delayed; provided that such successor servicer agrees
to fully effect the servicing transfer within 100 days following the termination
of the Servicer and to make all Monthly Advances that would otherwise be made
by
the Master Servicer under this Section 6.02 as of the date of such appointment,
and to reimburse the Master Servicer for any unreimbursed Monthly Advances
it
has made and any reimbursable expenses that it has incurred in connection with
this Section 6.02. Any proceeds received in connection with the appointment
of
such successor servicer shall be the property of the Servicer or its designee.
This 10-day period shall terminate immediately (i) at the close of business
on
the second Business Day of such 10-day period if (A) the Servicer was terminated
because of a Servicing Default described in Section 6.01(i) for failing to
make
a required Monthly Advance, and (B) the Servicer shall have failed to make
(or
cause to be made) such Monthly Advance, or shall fail to reimburse (or cause
to
be reimbursed) the Master Servicer for a Monthly Advance made by the Master
Servicer, by the close of business on such second Business Day, or (ii) at
the
close of business on the second Business Day following the date (if any) during
such 10-day period on which a Monthly Advance is due to be made, if the Servicer
shall have failed to make (or caused to be made) such Monthly Advance, or the
Servicer shall have failed to reimburse (or cause to be reimbursed) the Master
Servicer for such Monthly Advance, by the close of business on such second
Business Day. Notwithstanding anything to the contrary above, the Servicer
shall
perform all of the obligations of the Servicer in this Servicing Agreement
until
a successor servicer is appointed and such appointment is
effective.
Section
6.03 Reserved.
Section
6.04 Waiver
of Defaults.
The
Master Servicer may waive any default by the Servicer in the performance of
its
obligations hereunder and the consequences thereof, except a default in the
making of or the causing to be made any required distribution. Upon any such
waiver of a past default, such default shall be deemed to cease to exist, and
any Servicing Default arising therefrom shall be deemed to have been timely
remedied for every purpose of this Servicing Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
Servicing Agreement may be amended from time to time by the parties
hereto.
Section
7.02 GOVERNING
LAW.
THIS
SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if when delivered to:
(a) in
the
case of the Master Servicer and the Securities Administrator:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx
, Xxxxxxxx 00000
(or,
in
the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
21045) (Attention: Corporate Trust Services - AHMIT 2006-3), facsimile no.:
(000) 000-0000, or such other address as may hereafter be furnished to the
other
parties hereto in writing;)
(b) in
the
case of the Servicer:
American
Home Mortgage Servicing, Inc.
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx,
Xxxxx 00000-0000
Attention:
Xxxxx Xxxxxxxx
(c) in
the
case of Rating Agencies:
Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx - 41st
Floor
Attention:
Asset Backed Surveillance Group
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
(d) in
the
case of the Owner Trustee, the Corporate Trust Office: Wilmington Trust
Company
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
(e) in
the
case of the Issuing Entity, to American Home Mortgage Investment Trust 2006-3:
c/o
American Home Mortgage Securities LLC
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
General Counsel
(f) in
the
case of the Indenture Trustee: its Corporate Trust Office
(g) in
the
case of the Sponsor:
American
Home Mortgage Acceptance, Inc.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx XxXxxxxx
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid,
at
the address of such Noteholder as shown in the Note Register.
Section
7.04 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Servicing
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Servicing Agreement and
shall
in no way affect the validity or enforceability of the other provisions of
this
Servicing Agreement or of the Notes or the rights of the Noteholders
thereof.
Section
7.05 Third-Party
Beneficiaries.
This
Servicing Agreement will inure to the benefit of and be binding upon the parties
hereto, the Noteholders, the Owner Trustee, the Securities Administrator and
their respective successors and permitted assigns. Except as otherwise provided
in this Servicing Agreement, no other Person will have any right or obligation
hereunder.
Section
7.06 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
7.07 Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
7.08 Termination.
The
respective obligations and responsibilities of the Servicer and the Master
Servicer created hereby shall terminate upon the satisfaction and discharge
of
the Indenture pursuant to Section 4.10 thereof.
Section
7.09 No
Petition.
The
Servicer, by entering into this Servicing Agreement, hereby covenants and agrees
that it will not at any time institute against the Issuing Entity, or join
in
any institution against the Issuing Entity, any bankruptcy proceedings under
any
United States federal or state bankruptcy or similar law in connection with
any
obligations of the Issuing Entity. This section shall survive the satisfaction
and discharge of the Indenture by one year.
Section
7.10 No
Recourse.
The
Servicer acknowledges that no recourse may be had against the Issuing Entity,
except as may be expressly set forth in this Servicing Agreement.
Section
7.11 Consent
to Jurisdiction.
The
parties to this Servicing Agreement each hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or federal court sitting in
the
Borough of Manhattan in The City of New York in any action or proceeding arising
out of or relating to this Servicing Agreement or the transactions contemplated
hereby, and all such parties hereby irrevocably agree that all claims in respect
of such action or proceeding may be heard and determined in such New York State
or federal court and hereby irrevocably waive, to the fullest extent that they
may legally do so, the defense of an inconvenient forum to the maintenance
of
such action or proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SERVICING
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
7.12 Certain
Terms Concerning Indenture Trustee.
The
Indenture Trustee is entering into this Agreement not in its individual capacity
but solely in its capacity as trustee under the Indenture and all
indemnifications and protections from liability provided to the Indenture
Trustee under the Indenture shall, with out limitation, extend to the Indenture
Trustee hereunder. The Indenture Trustee shall have no obligations or duties
under this Agreement other than those duties expressly set forth herein as
duties on its part to be performed hereunder, and no implied duties shall be
read into this Agreement against the Indenture Trustee. The Indenture Trustee
is
not responsible for the terms of this Agreement or their sufficiency for any
purpose.
IN
WITNESS WHEREOF, the Master Servicer, the Issuing Entity, the Sponsor, the
Indenture Trustee and the Servicer have caused this Servicing Agreement to
be
duly executed by their respective officers or representatives all as of the
day
and year first above written.
|
XXXXX
FARGO BANK, N.A.
as
Master Servicer
|
||
| |
|
|
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | Vice President | |
|
AMERICAN
HOME MORTGAGE SERVICING, INC.
as
Servicer
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | |
| Title: | Executive Vice President, General Counsel & Secretary | |
| AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-3, as Issuing Entity | ||
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Owner
Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxxx X. Xxxxx | |
| Name: | Xxxxxxxx X. Xxxxx | |
| Title: | Vice President | |
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity but
solely as
Indenture Trustee
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Vice President | |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Vice President |
|
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
Sponsor
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | |
| Title: | Executive Vice President, General Counsel & Secretary | |
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
(Filed
Manually)
EXHIBIT
B
FORM
OF
REQUEST FOR RELEASE
DATE:
TO:
RE:
REQUEST FOR RELEASE OF DOCUMENTS
In
connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
Servicing
Agreement (AServicing
Agreement”) Dated:
Series
#:
Account
#:
Pool
#:
Loan
#:
Borrower
Name(s):
Reason
for Document Request: (circle one)Mortgage Loan Prepaid in Full
Other
Mortgage
Loan Repurchased
Please
deliver the Mortgage File to
AWe
hereby
certify that all amounts received or to be received in connection with such
payments which are required to be deposited have been deposited in the Protected
Account as provided in the Servicing Agreement.”
[Name
of
Servicer]
Authorized
Signature
******************************************************************************
TO
INDENTURE TRUSTEE: Please acknowledge this request (if we so request), and
check
off documents being enclosed with a copy of this form. You should retain this
form for your files in accordance with the terms of the Servicing
Agreement.
Enclosed
Documents: [ ]Promissory Note
[
]Mortgage or Deed of Trust
[
]Assignment(s) of Mortgage or Deed of Trust
[
]Title Insurance Policy
_______________________[
]Other:
Name
_______________________
Title
_______________________
Date
EXHIBIT
C
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE SERVICER
Mortgage-Backed
Notes, Series 2006-3
I,
[identify the certifying individual], a [title] of ______, (the “Servicer”),
hereby certify to the Master Servicer, American Home Mortgage Securities LLC
and
American Home Mortgage Acceptance, Inc. and their respective officers, directors
and affiliates, and 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 Section 4.06 of the Servicing Agreement and Item
1123
of Regulation AB (the “Compliance Statement”), the report on assessment of
the Servicer compliance with the servicing criteria set forth in
Item
1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Section 4.08 of the Servicing Agreement, Rules 13a-18
and
15d-18 under Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”), the
registered public accounting firm’s attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section
1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that
were
delivered by the Servicer to the Master Servicer pursuant to the
Servicing
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 Servicing Agreement has been provided
to the Master Servicer;
|
|
(4)
|
I
am responsible for reviewing the activities performed by the Servicer
as
servicer under the Servicing 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 Servicing 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 Servicing Function
Participant engaged by the Servicer pursuant to the Servicing Agreement,
have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the
Master
Servicer. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such
reports.
|
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the Servicing Agreement (the “Servicing Agreement”), dated as of December
28,
2006,
among American Home Mortgage Servicing, Inc., Xxxxx Fargo Bank National
Association, American Home Mortgage Investment Trust 2006-3, American Home
Mortgage Acceptance, Inc., and Deutsche Bank National Trust
Company.
|
Date:
|
||
|
[Signature]
|
|
|
[Title]
|
EXHIBIT
D
LOAN
LEVEL FORMAT FOR TAPE INPUT,
SERVICER
PERIOD REPORTING
Standard
File Layout - Master Servicing
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|||
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
EXHIBIT
E
REPORTING
DATA FOR DEFAULTED LOANS
Data
must
be submitted to Xxxxx Fargo Bank in an Excel
spreadsheet format with fixed field names and data type. The Excel
spreadsheet should be used as a template consistently every month when
submitting data.
Table:
Delinquency
|
Name
|
Type
|
Size
|
|
Servicer
Loan #
|
Number
(Double)
|
8
|
|
Investor
Loan #
|
Number
(Double)
|
8
|
|
Borrower
Name
|
Text
|
20
|
|
Address
|
Text
|
30
|
|
State
|
Text
|
2
|
|
Due
Date
|
Date/Time
|
8
|
|
Action
Code
|
Text
|
2
|
|
FC
Received
|
Date/Time
|
8
|
|
File
Referred to Atty
|
Date/Time
|
8
|
|
NOD
|
Date/Time
|
8
|
|
Complaint
Filed
|
Date/Time
|
8
|
|
Sale
Published
|
Date/Time
|
8
|
|
Target
Sale Date
|
Date/Time
|
8
|
|
Actual
Sale Date
|
Date/Time
|
8
|
|
Loss
Mit Approval Date
|
Date/Time
|
8
|
|
Loss
Mit Type
|
Text
|
5
|
|
Loss
Mit Estimated Completion Date
|
Date/Time
|
8
|
|
Loss
Mit Actual Completion Date
|
Date/Time
|
8
|
|
Loss
Mit Broken Plan Date
|
Date/Time
|
8
|
|
BK
Chapter
|
Text
|
6
|
|
BK
Filed Date
|
Date/Time
|
8
|
|
Post
Petition Due
|
Date/Time
|
8
|
|
Motion
for Relief
|
Date/Time
|
8
|
|
Lift
of Stay
|
Date/Time
|
8
|
|
RFD
|
Text
|
10
|
|
Occupant
Code
|
Text
|
10
|
|
Eviction
Start Date
|
Date/Time
|
8
|
|
Eviction
Completed Date
|
Date/Time
|
8
|
|
List
Price
|
Currency
|
8
|
|
List
Date
|
Date/Time
|
8
|
|
Accepted
Offer Price
|
Currency
|
8
|
|
Accepted
Offer Date
|
Date/Time
|
8
|
|
Estimated
REO Closing Date
|
Date/Time
|
8
|
|
Actual
REO Sale Date
|
Date/Time
|
8
|
Items
in bold are MANDATORY FIELDS. We must receive information in those fields every
month in order for your file to be accepted.
The
Action Code Field should show the applicable numeric code to indicate that
a
special action is being taken. The Action Codes are the
following:
12-Relief
Provisions
15-Bankruptcy/Litigation
20-Referred
for Deed-in-Lieu
30-Referred
fore Foreclosure
00-Xxxxxx
00-Xxxxxxxxxx
00-XXX-Xxxx
for Sale
71-Third
Party Sale/Condemnation
72-REO-Pending
Conveyance-Pool Insurance claim filed
Xxxxx
Fargo Bank will accept alternative Action Codes to those above, provided that
the Codes are consistent with industry standards. If Action Codes other than
those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description
of Action Codes:
Action
Code 12
- To
report a Mortgage Loan for which the Borrower has been granted relief for curing
a delinquency. The Action Date is the date the relief is expected to end. For
military indulgence, it will be three months after the Borrower's discharge
from
military service.
Action
Code 15
- To
report the Borrower's filing for bankruptcy or instituting some other type
of
litigation that will prevent or delay liquidation of the Mortgage Loan. The
Action Date will be either the date that any repayment plan (or forbearance)
instituted by the bankruptcy court will expire or an additional date by which
the litigation should be resolved.
Action
Code 20
- To
report that the Borrower has agreed to a deed-in-lieu or an assignment of the
property. The Action Date is the date the Servicer decided to pursue a
deed-in-lieu or the assignment.
Action
Code 30
- To
report that the decision has been made to foreclose the Mortgage Loan. The
Action Date is the date the Servicer referred the case to the foreclosure
attorney.
Action
Code 60
- To
report that a Mortgage Loan has been paid in full either at, or prior to,
maturity. The Action Date is the date the pay-off funds were remitted to the
Master Servicer.
Action
Code 65
- To
report that the Servicer is repurchasing the Mortgage Loan. The Action Date
is
the date the repurchase proceeds were remitted to the Master
Servicer.
Action
Code 70
- To
report that a Mortgage Loan has been foreclosed or a deed-in-lieu of foreclosure
has been accepted, and the Servicer, on behalf of the owner of the Mortgage
Loan, has acquired the property and may dispose of it. The Action Date is the
date of the foreclosure sale or, for deeds-in-lieu, the date the deed is
recorded on behalf of the owner of the Mortgage Loan.
Action
Code 71
- To
report that a Mortgage Loan has been foreclosed and a third party acquired
the
property, or a total condemnation of the property has occurred. The Action
Date
is the date of the foreclosure sale or the date the condemnation award was
received.
Action
Code 72
- To
report that a Mortgage Loan has been foreclosed, or a deed-in-lieu has been
accepted, and the property may be conveyed to the mortgage insurer and the
pool
insurance claim has been filed. The Action Date is the date of the foreclosure
sale, or, for deeds-in-lieu, the date of the deed for conventional
mortgages.
The
Loss
Mit Type field should show the approved Loss Mitigation arrangement. The
following are acceptable:
ASUM-
Approved
Assumption
BAP- Borrower
Assistance Program
CO- Charge
Off
DIL- Deed-in-Lieu
FFA- Formal
Forbearance Agreement
MOD- Loan
Modification
PRE- Pre-Sale
SS- Short
Sale
MISC- Anything
else approved by the PMI or Pool Insurer
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant Code field should show the current status of the property. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit
F
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
(a) 1.The
numbers on the form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2.
The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12.
Complete
as applicable. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, bills, canceled checks, etc., to document the
expense. Entries not properly documented will not be reimbursed to the
Servicer.
13. The
total
of lines 1 through 12.
(b)
Credits:
14-21.
Complete
as applicable. All line entries must be supported by copies of the appropriate
claims forms, EOBs, HUD-1 and/or other proceeds verification, statements,
payment checks, etc. to document the credit. If the Mortgage Loan is subject
to
a Bankruptcy Deficiency, the difference between the Unpaid Principal Balance
of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance
as
reduced by the Bankruptcy Deficiency should be input on line 20.
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
(c)
Total
Realized Loss (or Amount of Any Gain)
23.
The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show the amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
XXXXX
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Servicer
Loan No.
|
|
Servicer
Name
|
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
$ |
(1)
|
|||
|
(2)
|
Interest
accrued at Net Rate
|
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
|
(4)
|
||||
|
(5)
|
Taxes
(see page 2)
|
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
(11)
|
|||||
|
(12)
|
Other
(itemize)
|
|
(12)
|
||||
|
Cash
for Keys
|
|
(12)
|
|||||
|
HOA/Condo
Fees
|
|
(12)
|
|||||
|
|
|
(12)
|
|||||
|
Total
Expenses
|
$ |
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
(15)
|
|||||
|
(16)
|
Rental
Receipts
|
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
|
(18a) | ||||
|
HUD
Part A
|
|||||||
|
HUD
Part B
|
(18b) | ||||||
|
(19)
|
Pool
Insurance Proceeds
|
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
|
(21)
|
||||
|
|
|
|
(21)
|
||||
|
Total
Credits
|
$
|
(22)
|
|||||
|
Total
Realized Loss (or Amount of Gain)
|
|
|
$
|
(23)
|
|||
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(unless
otherwise noted)
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
[NAME
OF
OWNER] [NAME OF SUBSERVICER]
Date: _________________________
By: _________________________
Name:
Title:
