National City Home Loan Services, Inc., as Servicer and Lehman Brothers Holdings Inc., as Seller and Aurora Loan Services LLC, as Master Servicer Structured Asset Securities Corporation First Franklin Mortgage Loan Trust 2006-FF12 Mortgage...
EXECUTION
National
City Home Loan Services, Inc.,
as
Servicer
and
Xxxxxx
Brothers Holdings Inc.,
as
Seller
and
Aurora
Loan Services LLC,
as
Master
Servicer
_____________________________
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2006-FF12
Dated
as
of August 1, 2006
_____________________________
TABLE
OF CONTENTS
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Page
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ARTICLE
I. DEFINITIONS
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2
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ARTICLE
II. SELLER’S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
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13
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Section
2.01.
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Contract
for Servicing; Possession of Servicing Files.
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13
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Section
2.02.
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Books
and Records.
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14
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ARTICLE
III. SERVICING OF THE MORTGAGE LOANS
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14
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Section
3.01.
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Servicer
to Service.
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14
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Section
3.02.
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Collection
and Liquidation of Mortgage Loans.
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16
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Section
3.03.
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Establishment
of and Deposits to Custodial Account.
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17
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Section
3.04.
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Permitted
Withdrawals From Custodial Account.
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18
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Section
3.05.
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Establishment
of and Deposits to Escrow Account.
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19
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Section
3.06.
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Permitted
Withdrawals From Escrow Account.
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20
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Section
3.07.
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Notification
of Adjustments.
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21
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Section
3.08.
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Reserved.
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21
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Section
3.09.
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Payment
of Taxes, Insurance and Other Charges.
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21
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Section
3.10.
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Protection
of Accounts.
|
22
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Section
3.11.
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Maintenance
of Hazard Insurance.
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23
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Section
3.12.
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Maintenance
of Mortgage Impairment Insurance.
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24
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Section
3.13.
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
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25
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Section
3.14.
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Inspections.
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25
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Section
3.15.
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Restoration
of Mortgaged Property.
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26
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Section
3.16.
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Maintenance
of PMI and/or LPMI Policy; Claims.
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26
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Section
3.17.
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Title,
Management and Disposition of REO Property.
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28
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Section
3.18.
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Real
Estate Owned Reports.
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30
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Section
3.19.
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Liquidation
Reports.
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30
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Section
3.20.
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Reports
of Foreclosures and Abandonments of Mortgaged Property.
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31
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Section
3.21.
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Prepayment
Charges.
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31
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Section
3.22.
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Compliance
with Safeguarding Customer Information Requirements.
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31
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Section
3.23.
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Credit
Reporting
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31
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ARTICLE
IV. PAYMENTS TO MASTER SERVICER
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32
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Section
4.01.
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Remittances.
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32
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Section
4.02.
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Statements
to Master Servicer.
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33
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Section
4.03.
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Monthly
Advances by Servicer.
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34
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Section
4.04.
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Due
Dates Other Than the First of the Month.
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35
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i
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ARTICLE
V. GENERAL SERVICING PROCEDURES
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35
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Section
5.01.
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Transfers
of Mortgaged Property.
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35
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Section
5.02.
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Satisfaction
of Mortgages and Release of Mortgage Files.
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36
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Section
5.03.
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Servicing
Compensation.
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36
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Section
5.04.
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Report
on Attestation of Compliance with Applicable Servicing
Criteria.
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37
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Section
5.05.
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Servicing
Compliance Statement.
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37
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Section
5.06.
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Inspection.
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38
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Section
5.07.
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Report
on Assessment of Compliance with Applicable Servicing
Criteria.
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38
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Section
5.08.
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Opinion
of Counsel; Servicer.
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39
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ARTICLE
VI. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
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39
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Section
6.01.
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Representations,
Warranties and Agreements of the Servicer.
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39
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Section
6.02.
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Remedies
for Breach of Representations and Warranties of the
Servicer.
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41
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Section
6.03.
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Additional
Indemnification by the Servicer.
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42
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Section
6.04.
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Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
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43
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Section
6.05.
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Purchase
of Distressed Mortgage Loans.
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43
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Section
6.06.
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Reporting
Requirements of the Commission and Indemnification.
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44
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ARTICLE
VII. THE SERVICER
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45
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Section
7.01.
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Merger
or Consolidation of the Servicer.
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45
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Section
7.02.
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Limitation
on Liability of the Servicer and Others.
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45
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Section
7.03.
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Limitation
on Resignation and Assignment by the Servicer.
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46
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Section
7.04.
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Subservicing
Agreements and Successor Subservicer.
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47
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ARTICLE
VIII. TERMINATION
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48
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Section
8.01.
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Termination
for Cause.
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48
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Section
8.02.
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Termination
Without Cause.
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51
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Section
8.03.
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Special
Termination Events.
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51
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Section
8.04.
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Termination
for Distressed Mortgage Loans.
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53
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ii
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ARTICLE
IX. MISCELLANEOUS PROVISIONS
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54
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Section
9.01.
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Successor
to the Servicer.
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54
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Section
9.02.
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Costs.
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56
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Section
9.03.
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Protection
of Confidential Information.
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56
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Section
9.04.
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Notices.
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56
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Section
9.05.
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Severability
Clause.
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57
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Section
9.06.
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No
Personal Solicitation.
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57
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Section
9.07.
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Counterparts.
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58
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Section
9.08.
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Place
of Delivery and Governing Law.
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58
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Section
9.09.
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Further
Agreements.
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58
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Section
9.10.
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Intention
of the Parties.
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58
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Section
9.11.
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Successors
and Assigns; Assignment of Servicing Agreement.
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58
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Section
9.12.
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Assignment
by the Seller.
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59
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Section
9.13.
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Amendment.
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59
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Section
9.14.
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Waivers.
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59
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Section
9.15.
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Exhibits.
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59
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Section
9.16.
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Intended
Third Party Beneficiaries.
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59
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Section
9.17.
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General
Interpretive Principles.
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60
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Section
9.18.
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Reproduction
of Documents.
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60
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EXHIBITS
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EXHIBIT
A
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MORTGAGE
LOAN SCHEDULE
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EXHIBIT
B
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CUSTODIAL
ACCOUNT LETTER AGREEMENT
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EXHIBIT
C
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ESCROW
ACCOUNT LETTER AGREEMENT
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EXHIBIT
D-1
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FORM
OF MONTHLY REMITTANCE ADVICE
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EXHIBIT
D-2
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STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
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EXHIBIT
D-3
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FORM
OF LOAN LOSS REPORT
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EXHIBIT
E
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FORM
OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR, THE TRUSTEE AND
THE
MASTER SERVICER BY THE SERVICER
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EXHIBIT
F
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FFMLT
2006-FF12 TRUST AGREEMENT
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EXHIBIT
G
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XXXXXX
XXX GUIDE NO. 95-19
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EXHIBIT
H
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[RESERVED]
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EXHIBIT
I
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SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF
COMPLIANCE
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EXHIBIT
J
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TRANSACTION
PARTIES
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EXHIBIT
K
|
FORM
OF ANNUAL OFFICER’S
CERTIFICATE
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iii
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This
SECURITIZATION
SERVICING AGREEMENT
(this
“Agreement”), entered into as of the 1st day of August, 2006, by and among
XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation (the “Seller”) and
National City Home Loan Services, Inc., a Delaware corporation (“Servicer”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”) and
acknowledged by U.S. Bank National Association, solely in its capacity as
trustee (the “Trustee”) under the Trust Agreement (as defined herein), recites
and provides as follows:
W I T N E S S E T H:
WHEREAS,
the Servicer and Xxxxxx Brothers Bank, FSB (the “Bank”) are parties to a Flow
Servicing Agreement dated April 1, 2005, as amended, (the “Flow Servicing
Agreement”), pursuant to which the Servicer services certain residential,
adjustable and fixed rate mortgage loans identified on Exhibit A hereto (the
“Mortgage Loans”) which were acquired by the Bank from First Franklin Financial
Corporation, (the “Mortgage Loan Seller”) pursuant to the terms of a Flow
Mortgage Purchase and Warranties Agreement, dated as of April 1, 2005, as
amended between the Bank and the Mortgage Loan Seller.
WHEREAS,
pursuant to an Assignment and Assumption Agreement, dated as of August 1,
2006
(the “Assignment Agreement”), the Seller acquired from the Bank all of the
Bank’s right, title and interest in and to the Mortgage Loans and assumed for
the benefit of the Mortgage Loan Seller, the Servicer and the Bank all the
rights and obligations of the Bank as owner of the Mortgage Loans.
WHEREAS,
on the Closing Date, the Seller intends to convey the Mortgage Loans on a
servicing-retained basis to Structured Asset Securities Corporation (the
“Depositor”), which in turn will convey the Mortgage Loans to the Trustee under
a trust agreement dated as of August 1, 2006 (the “Trust Agreement”), among the
Trustee, the Depositor, the Master Servicer and Office Tiger Global Real
Estate
Services, Inc., (f/k/a the MortgageRamp, LLC), as credit risk manager (the
“Credit Risk Manager”);
WHEREAS,
the Seller desires that the Servicer service the Mortgage Loans pursuant
to this
Agreement, and the Servicer has agreed to do so, subject to the right of
the
Seller and of the Master Servicer to terminate the rights and obligations
of the
Servicer hereunder at any time and to the other conditions set forth
herein;
WHEREAS,
the Seller and the Servicer agree that the provisions of the Flow Servicing
Agreement shall not apply to such related Mortgage Loans for so long as such
related Mortgage Loans remain subject to the provisions of the Trust
Agreement;
WHEREAS,
the Master Servicer shall be obligated under the Trust Agreement, among other
things, to supervise the servicing of the Mortgage Loans on behalf of the
Trustee, and shall have the right, under certain circumstances, to terminate
the
rights and obligations of the Servicer under this Servicing Agreement upon
the
occurrence and continuance of an Event of Default as provided
herein;
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1 -
WHEREAS,
multiple classes of certificates (the “Certificates”), including the Class P and
the Class X Certificates, will be issued on the Closing Date pursuant to
the
Trust Agreement and Xxxxxx Brothers Inc. or a nominee thereof is expected
to be
the initial registered holder of the Class P and Class X
Certificates;
WHEREAS,
subsequent to the Closing Date, Xxxxxx Brothers Inc. intends to convey all
of
its rights, title and interest in and to the Class P and the Class X
Certificates and all payments and all other proceeds received thereunder
to an
owner trust or other special purpose entity in which it will hold the sole
equity interest, which owner trust or special purpose entity will issue net
interest margin securities (“NIM Securities”) through an indenture trust, such
NIM Securities secured, in part, by the payments on such Certificates (the
“NIMS
Transaction”);
WHEREAS,
one or more insurers (collectively, the “NIMS Insurer”) may each issue one or
more insurance policies guaranteeing certain payments under the NIM Securities
to be issued pursuant to the indenture in the NIMS Transaction;
WHEREAS,
in the event there may be two or more individual insurers it is intended
that
the rights extended to the NIMS Insurer pursuant to this Agreement be allocated
among two or more individual insurers that issue insurance policies in
connection with the NIMS Transaction through a NIMS Insurance Agreement by
and
among such insurers and the parties hereto;
WHEREAS,
the Seller and the Servicer acknowledge and agree that the Seller will assign
all of its rights and delegate all of its obligations hereunder (excluding
the
Seller’s rights to terminate the rights and obligations of the Servicer
hereunder and the Seller’s obligations pursuant to Section 9.02, all of which
rights and obligations will remain with the Seller or be delegated to or
assumed
by the Master Servicer) to the Trustee, and that each reference herein to
the
Seller is intended, unless otherwise specified, to mean the Seller or the
Trustee, as assignee, whichever is the owner of the Mortgage Loans from time
to
time;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller, the Master Servicer and the Servicer hereby
agree as follows:
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with applicable state, local and federal laws,
rules and regulations.
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2 -
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan for which the related Mortgage Note provides for adjustment
of the
applicable Mortgage Interest Rate according to an index.
Agreement:
This
Securitization Servicing Agreement and all amendments hereof and supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding the Servicing Fee and
Prepayment Charges attributable to the Mortgage Loans, including but not
limited
to, interest received on funds deposited in the Custodial Account or any
Escrow
Account, late charges, fees received with respect to checks or bank drafts
returned by the related bank for non-sufficient funds, assumption fees, optional
insurance administrative fees and all other incidental fees and charges.
The
Servicer shall retain all Ancillary Income to the extent not required to
be
deposited into the Custodial Account.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage
to
the party indicated therein or if the related Mortgage has been recorded
in the
name of MERS or its designee, such actions as are necessary to cause the
Trustee
or its designee to be shown as the owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the States of New York, Colorado, Pennsylvania or
Massachusetts are authorized or obligated by law or executive order to be
closed.
Certificateholder:
The
meaning set forth in the Trust Agreement.
Certificates:
Any or
all of the Certificates issued pursuant to the Trust Agreement.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan documents.
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3 -
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
3.03.
Custodial
Agreement:
The
custodial agreement relating to the custody of certain of the Mortgage Loans,
between the related Custodian and the Trustee, as acknowledged by the Seller,
the Depositor, the Master Servicer and the Servicer, and dated as of August
1,
2006.
Custodian:
U.S
Bank National Association and its successors and assigns.
Cut-off
Date:
August
1, 2006.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, or any
successor in interest.
Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the next
succeeding Business Day.
Distressed
Mortgage Loan:
As of
any Determination Date, any Mortgage Loan that is delinquent in payment for
a
period of ninety (90) days or more, without giving effect to any grace period
permitted by the related Mortgage Loan, or for which the Servicer or Trustee
has
accepted a deed in lieu of foreclosure.
Distribution
Date:
Commencing in September 2006, the 25th day of each month or, if such day
is not
a Business Day, the next succeeding Business Day).
Due
Date:
The day
of the calendar month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace. Pursuant to Section 4.04, with respect to
any
Mortgage Loan for which payment from the Mortgagor is due on a day other
than
the first day of the month, such Mortgage Loan will be treated as if the
Monthly
Payment is due on the first day of the immediately succeeding
month.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month immediately preceding the month of the Remittance Date and ending on
the
first day of the month of the Remittance Date.
Eligible
Deposit Account:
An
account that is maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution.
Eligible
Institution:
Any of
the following:
(i)an
institution whose:
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4 -
(A) commercial
paper, short-term debt obligations, or other short-term deposits are rated
at
least “A-1+” or long-term unsecured debt obligations are rated at least “AA-“ by
S&P, if the amounts on deposit are to be held in the account for no more
than 365 days; or
(B) commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P, if the amounts on deposit are to
be held in the account for no more than 30 days and are not intended to be
used
as credit enhancement. Upon the loss of the required rating set forth in
this
clause (i), the accounts shall be transferred immediately to accounts which
have
the required rating. Furthermore, commingling by the Servicer is acceptable
at
the A-2 rating level if the Servicer is a bank, thrift or depository and
provided the Servicer has the capability to immediately segregate funds and
commence remittance to an Eligible Deposit Account upon a downgrade;
or
(ii) the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than three days prior to the Remittance
Date in
each month:
(iii) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(iv) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories, the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of such investment or the contractual commitment providing
for
such investment the commercial paper or other short-term debt obligations
of
such depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of
its
two highest long-term rating categories;
(v) repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by
Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
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5 -
(vi) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which
have a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Fund to exceed 20% of the sum of the outstanding principal balance of the
Mortgage Loans at any Determination Date and the aggregate principal amount
of
all Eligible Investments in the Certificate Account; provided, further, that
such securities will not be Eligible Investments if they are published as
being
under review with negative implications from either Rating Agency;
(vii) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not
more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(viii) a
Qualified GIC (as defined in the Trust Agreement);
(ix) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(x) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that is acceptable to the NIMS
Insurer and would not adversely affect the then current rating by any Rating
Agency then rating the Certificates or the NIM Securities and has a short
term
rating of at least “A-1” or its equivalent by each Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges
and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects
fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time.
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
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6 -
Environmental
Problem Property:
A
Mortgaged Property or REO Property that is in violation of any environmental
law, rule or regulation.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Servicer in accordance with
Section 3.13.
Escrow
Account:
The
separate account or accounts operated and maintained pursuant to Section
3.05.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any
event set forth in Section 8.01.
Xxxxxx
Xxx:
Xxxxxx
Xxx, or any successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer in accordance with Section
3.13.
Fitch:
Fitch
Ratings, Inc. or any successor in interest.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Holder:
The
meaning set forth in the Trust Agreement.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property, including the proceeds of
any
hazard or flood insurance policy, LPMI Policy or PMI Policy.
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related REO Property, if
the
Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio:
Not
applicable.
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7 -
LPMI
Loan:
Not
applicable.
LPMI
Policy:
Not
applicable.
LPMI
Fee:
Not
applicable.
Master
Servicer:
Aurora
Loan Services LLC or any successor in interest, or if any successor master
servicer shall be appointed as provided in the Trust Agreement, then such
successor master servicer.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate) that was due on the Mortgage Loan on the
Due
Date in the related Due Period, and that (i) was delinquent at the close
of
business on the related Determination Date and (ii) was not the subject of
a
previous Monthly Advance, but only to the extent that such amount is expected,
in the reasonable judgment of the Servicer, to be recoverable from collections
or other recoveries in respect of such Mortgage Loan. To the extent that
the
Servicer determines that any such amount is not recoverable from collections
or
other recoveries in respect of such Mortgage Loan, such determination shall
be
evidenced by a an Officer’s Certificate of a Servicing Officer delivered to the
Master Servicer and the NIMS Insurer setting forth such determination and
the
procedures and considerations of the Servicer forming the basis of such
determination.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Moody’s:
Xxxxx’x
Investors Service, Inc. or any success as in interest.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple
in real
property securing the Mortgage Note.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy to be maintained by
the
Servicer in accordance with Section 3.12.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note.
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8 -
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement and identified
on the related Mortgage Loan Schedule, which Mortgage Loan includes without
limitation the related Mortgage Loan documents, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Master Servicer, which shall be equal to the Mortgage Interest Rate minus
the
Servicing Fee and the LPMI Fee, if any.
Mortgage
Loan Schedule:
A
schedule of the Mortgage Loans attached hereto as Exhibit A setting forth
information with respect to such Mortgage Loans as agreed to by the Seller,
the
Servicer and the Master Servicer, including but not limited to (i) a Prepayment
Charge Schedule and (ii) a data field indicating whether the Mortgage Loan
is
subject to an early payment default repurchase obligation.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
NIM
Securities:
As
defined in the tenth Recital to this Agreement.
NIMS
Insurer:
As
defined in the eleventh Recital to this Agreement.
NIMS
Transaction:
As
defined in the tenth Recital to this Agreement.
Nonrecoverable
Advance:
Any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer which, in the reasonable discretion of the
Servicer, will not or, in the case of a proposed Servicing Advance, would
not,
ultimately be recoverable by the Servicer from the related Mortgagor, related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or otherwise.
The determination by the Servicer that all or a portion of a Servicing Advance
would be a Nonrecoverable Advance shall be evidenced by an Officer’s Certificate
delivered to the Master Servicer and, if required, the NIMS Insurer setting
forth such determination and a reasonable explanation thereof.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an assistant Vice President
and by
the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, and delivered to the Seller, the Master Servicer,
Trustee and/or the NIMS Insurer as required by this Agreement.
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9 -
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Servicer, reasonably
acceptable to the Seller, the Trustee, the Master Servicer and/or the NIMS
Insurer, but which must be an independent outside counsel with respect to
any
such opinion of counsel concerning all federal income tax matters.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI
Policy:
Not
applicable.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
as
specified in the Prepayment Charge Schedule, if any, due in connection with
a
full or partial prepayment of such Mortgage Loan during the immediately
preceding Principal Prepayment Period in accordance with the terms
thereof.
Prepayment
Charge Schedule:
A data
field in the Mortgage Loan Schedule attached hereto as Exhibit A which sets
forth the amount or method of calculation of the Prepayment Charge and the
term
during which such Prepayment Charge is imposed with respect to a Mortgage
Loan.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied
to such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net the Servicing Fee for Principal Prepayments in full
only) that would have accrued on the amount of such Principal Prepayment
during
the period commencing on the date as of which such Principal Prepayment was
applied to such Mortgage Loan and ending on the day of the immediately preceding
such Due Date, inclusive.
Prime
Rate:
The
prime rate published from time to time, as published as the average rate
in
The
Wall Street Journal Northeast Edition.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, including any
payment
or other recovery of principal in connection with repurchase of a Mortgage
Loan
by the Seller, the Servicer, the NIMS Insurer, or any other Person, which
is
received in advance of its scheduled Due Date, including any Prepayment Charge
or premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months
subsequent to the month of prepayment.
Principal
Prepayment Period:
With
respect to any Remittance Date and any full or partial Principal Prepayment,
the
calendar month immediately preceding the month of such Remittance
Date.
Purchase
Price:
With
respect to any Distressed Mortgage Loan or REO Property to be purchased by
the
NIMS Insurer pursuant to Section 6.05, an amount equal to the sum of (i)
100% of
the principal balance thereof as of the date of purchase, (ii) accrued interest
on such principal balance at the applicable Mortgage Interest Rate in effect
from time to time to the due date as to which interest was last covered by
a
payment by the Mortgagor or a Monthly Advance by the Servicer or Master Servicer
and (iii) any unreimbursed Servicing Advances, Monthly Advances and any unpaid
Servicing Fees allocable to such Distressed Mortgage Loan or REO
Property.
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10 -
Qualified
Insurer:
Not
applicable.
Rating
Agency:
Each of
Fitch, Xxxxx’x and S&P or their successors. If such agencies or their
successors are no longer in existence, “Rating Agencies” shall be such
nationally recognized statistical rating agencies, or other comparable person,
agreed upon and designated by the Seller, notice of which designation shall
be
given to the Trustee, the NIMS Insurer, the Master Servicer and the
Servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application
of the
Servicemembers Civil Relief Act, any amount by which interest collectible
on
such Mortgage Loan for the Due Date in the related Due Period is less than
the
interest accrued thereon for the applicable one-month period at the Mortgage
Interest Rate without giving effect to such reduction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
With
respect to each Distribution Date, the 18th day (or if such 18th day is not
a
Business Day, the first Business Day immediately following) of the month
in
which such Distribution Date occurs.
REO
Disposition:
The
final sale or other disposition by the Servicer of any REO
Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
3.17.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trustee through
foreclosure or by deed in lieu of foreclosure, as described in Section
3.17.
Residual
Certificate:
The
Class R Certificate and Class LT-R Certificates.
S&P:
Standard & Poor’s Ratings Services, A Division of The XxXxxx-Xxxx Companies,
Inc. or any successor in interest.
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11 -
Seller:
Xxxxxx
Brothers Holdings Inc. or its successor in interest or assigns.
Servicer:
National City Home Loan Services, Inc. or its successor in interest or assigns
or any successor to the Servicer under this Agreement as herein provided.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations, including, but
not
limited to, the cost of (a) the preservation, restoration and protection
of the
Mortgaged Property, (b) any enforcement or administrative or judicial
proceedings, or any legal work or advances specifically related to servicing
the
Mortgage Loans, including foreclosures, bankruptcy, condemnations, drug
seizures, elections, foreclosure by subordinate or superior lienholders,
(c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) taxes, assessments, water
rates, sewer rents and other charges which are or may become a lien upon
the
Mortgaged Property, PMI Policy premiums, LPMI Policy premiums and fire and
hazard insurance coverage, (e) any losses sustained by the Servicer with
respect
to the liquidation of the Mortgaged Property and (f) compliance with the
obligations pursuant to the provisions of the Xxxxxx Xxx Guides. The Servicer
shall have no obligation to make any Servicing Advances if the Servicer
determines that such Servicing Advances are or would constitute a Nonrecoverable
Advance.
Servicing
Fee:
With
respect to each Due Period and any Mortgage Loan, an amount equal to the
sum of
(a) one-twelfth the product of (i) the Servicing Fee Rate and (ii) the
outstanding principal balance of such Mortgage Loan as of the related
Determination Date. The Servicing Fee is payable solely from, the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds to the extent permitted
by
Section 3.04 of this Agreement) of such Monthly Payments collected by the
Servicer, or as otherwise provided under this Agreement.
Servicing
Fee Rate:
0.50%
per annum.
Servicing
File:
The
items pertaining to a particular Mortgage Loan including, but not limited
to,
the computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating
and/or
servicing each Mortgage Loan, which are held in trust for the Trustee by
the
Servicer.
Servicing
Officer:
Any
officer of the Servicer involved in or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Master Servicer upon request, as
such
list may from time to time be amended.
Special
Servicer:
The
person designated by the Seller (with the prior written consent of the Trustee,
the Master Servicer and the NIMS Insurer) to assume the servicing of Distressed
Mortgage Loans pursuant to Section 8.04 hereof.
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12 -
Subcontractor:
Any
vendor, subcontractor or other
Person
that is not responsible for the overall servicing (as “servicing” is commonly
understood by participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions identified in
Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the direction
or authority of the Servicer or a related Subservicer; provided, further,
that
“Subcontractor” shall not include a lockbox provider or a tax or insurance
tracking provider; provided,
however,
that if,
pursuant to interpretive guidance provided by the Commission or its staff
or
consensus among participants in the asset-backed securities markets, any
of such
parties is determined to be a Subcontractor, such party shall be a
Subcontractor.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement that are
identified in Item 1122(d) of Regulation AB.
Superior
Lien:
Not
applicable.
Termination
Fee:
The
amount that the Seller shall be required to pay to the Servicer as liquidated
damages as a result of the Seller terminating this Agreement without cause
with
respect to some or all of the Mortgage Loans pursuant to Section 8.02 hereof.
Termination
Fee Percentage:
That
certain percentage as agreed to in writing by the Seller and the Servicer.
Trigger
Event:
As
defined in Section 8.03.
Trust
Agreement:
The
Trust Agreement dated as of August 1, 2006, among
the
Trustee, the Master Servicer, the Depositor and the Credit Risk
Manager.
Trust
Fund:
The
trust fund established by the Trust Agreement, the assets of which consist
of
the Mortgage Loans and any other assets as set forth therein.
Trustee:
U.S.
Bank National Association or any successor in interest, or if any successor
trustee or co-trustee shall be appointed as provided in the Trust Agreement,
then such successor trustee or such co-trustee, as the case may be.
Any
capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to such terms in the Trust Agreement.
ARTICLE
II.
SELLER’S
ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES
Section
2.01. Contract
for Servicing; Possession of Servicing Files.
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13 -
The
Seller, by execution and delivery of this Agreement, does hereby contract
with
the Servicer as the owner of the servicing rights, subject to the terms of
this
Agreement, for the servicing of the Mortgage Loans. The Servicer shall maintain
a Servicing File with respect to each Mortgage Loan in order to service such
Mortgage Loans pursuant to this Agreement and each Servicing File delivered
to
the Servicer shall be held in trust by the Servicer for the benefit of the
Trustee; provided,
however,
that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller. The Servicer’s possession of any portion of the
Mortgage Loan documents shall be at the will of the Trustee for the sole
purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in
a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Servicing File shall be vested in the Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in
the Trustee and shall be retained and maintained, in trust, by the Servicer
at
the will of the Trustee in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall
be
appropriately marked to clearly reflect the ownership of the related Mortgage
Loan by the Trustee. The Servicer shall release from its custody the contents
of
any Servicing File retained by it only in accordance with this
Agreement.
Section
2.02. Books
and Records.
All
rights arising out of the Mortgage Loans shall be vested in the Trustee,
subject
to the Servicer’s right to service and administer the Mortgage Loans hereunder
in accordance with the terms of this Agreement. All funds received on or
in
connection with a Mortgage Loan, other than the Servicing Fee and other
compensation and reimbursement to which the Servicer is entitled as set forth
herein, including but not limited to Section 5.03 below, shall be received
and
held by the Servicer in trust for the benefit of the Trustee pursuant to
the
terms of this Agreement.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 3.01 within one week of their execution;
provided,
however,
that
the Servicer shall provide the Custodian with a Servicer certified true copy
of
any such document submitted for recordation within one week of its execution,
and shall provide the original of any document submitted for recordation
or a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within 120 days of its submission
for
recordation.
ARTICLE
III.
SERVICING
OF THE MORTGAGE LOANS
Section
3.01. Servicer
to Service.
The
Servicer, as the owner of the servicing rights, shall service and administer
the
Mortgage Loans from and after the Closing Date and shall have full power
and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices.
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14 -
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary
any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if
in the
Servicer’s reasonable and prudent determination in accordance with Accepted
Servicing Practices such waiver, modification, postponement or indulgence
is not
materially adverse to the Trust Fund; provided,
however,
that
unless the Servicer has obtained the prior written consent of the Master
Servicer and the NIMS Insurer, the Servicer shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate
(except for modifications relating to Relief Act Reductions), defer or forgive
the payment of principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or change the
final
maturity date on such Mortgage Loan. In the event of any such modification
which
permits the deferral of interest or principal payments on any Mortgage Loan,
the
Servicer shall, on the Business Day immediately preceding the Remittance
Date in
any month in which any such principal or interest payment has been deferred,
make a Monthly Advance in accordance with Section 4.03, in an amount equal
to
the difference between (a) such month’s principal and one month’s interest at
the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Servicer shall
be
entitled to reimbursement for such advances to the same extent as for all
other
advances made pursuant to Section 3.04. Without limiting the generality of
the
foregoing, the Servicer shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Trustee, all instruments
of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties; provided,
further,
that
upon the full release or discharge, the Servicer shall notify the related
Custodian of the related Mortgage Loan of such full release or discharge.
Upon
the reasonable request of the Servicer, the Trustee shall execute and deliver
to
the Servicer with any powers of attorney and other documents, furnished to
it by
the Servicer and reasonably satisfactory to the Trustee, necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement; provided,
that
the
Trustee shall not be liable for the actions of the Servicer under such powers
of
attorney. Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Servicer shall forward
to
the Master Servicer copies of any documents evidencing such assumption,
modification, consolidation or extension. Notwithstanding anything to the
contrary contained in this Servicing Agreement, the Servicer shall not make
or
permit any modification, waiver or amendment of any term of any Mortgage
Loan
that would cause any REMIC created under the Trust Agreement to fail to qualify
as a REMIC or result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code.
The
Servicer shall not without the Trustee’s written consent: (i) initiate any
action, suit or proceedings solely under the Trustee’s name without indicating
the Servicer’s, representative capacity or (ii) take any action with the intent
to cause, and which actually does cause, the Trustee to be registered to
do
business in any state. The Servicer shall indemnify the Trustee for any and
all
costs, liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse of such powers of attorney by the
Servicer.
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15 -
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures (including collection procedures) and exercise the same care that
it
would employ and exercise in servicing and administering similar mortgage
loans
for other institutional investors, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement.
Section
3.02. Collection
and Liquidation of Mortgage Loans.
Continuously
from the Closing Date or Servicing Transfer Date, as applicable, until the
date
each Mortgage Loan ceases to be subject to this Agreement, the Servicer shall
proceed diligently to collect all payments due under each of the Mortgage
Loans
when the same shall become due and payable and shall take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and
payable.
The
Servicer shall use its best efforts, consistent with the procedures that
the
Servicer would use in servicing similar mortgage loans for other institutional
investors in accordance with Accepted Servicing Practices, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements
can be
made for collection of delinquent payments pursuant to Section 3.01. The
Servicer shall use its best efforts to realize upon defaulted Mortgage Loans
in
such a manner as will maximize the receipt of principal and interest by the
Trustee, taking into account, among other things, the timing of foreclosure
proceedings. The foregoing is subject to the provisions that, in any case
in
which Mortgaged Property shall have suffered damage, the Servicer shall not
be
required to expend its own funds toward the restoration of such property
unless
it shall determine in its discretion (i) that such restoration will increase
the
proceeds of liquidation of the related Mortgage Loan to the Master Servicer
after reimbursement to itself for such expenses, and (ii) that such expenses
will be recoverable by the Servicer through Insurance Proceeds or Liquidation
Proceeds from the related Mortgaged Property. In the event that any payment
due
under any Mortgage Loan and not postponed pursuant to Section 3.01 is not
paid
when the same becomes due and payable, or in the event the Mortgagor fails
to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall
take
such action as (1) the Servicer would take for other institutional investors
under similar circumstances with respect to a similar mortgage loan, (2)
shall
be consistent with Accepted Servicing Practices, (3) the Servicer shall
determine prudently to be in the best interest of the Trust Fund, and (4)
is
consistent with any related LPMI Policy. In the event that any payment due
under
any Mortgage Loan is not postponed pursuant to Section 3.01 and remains
delinquent for a period of ninety (90) days or any other default continues
for a
period of ninety (90) days beyond the expiration of any grace or cure period,
the Servicer shall commence foreclosure proceedings, provided that prior
to
commencing foreclosure proceedings, the Servicer shall notify the Master
Servicer, the Trustee and the NIMS Insurer in writing of the Servicer’s
intention to do so. The Servicer shall notify the Master Servicer, the Trustee
and the NIMS Insurer in writing of the commencement of foreclosure proceedings
on a monthly basis no later than the fifth Business Day of each month. In
such
connection, the Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof from the related Mortgaged Property,
as contemplated in Section 3.04.
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Section
3.03. Establishment
of and Deposits to Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in
the
form of time deposit or demand accounts, titled “National City Home Loan
Services, Inc. in trust for U.S. Bank National Association, as Trustee for
the
First Franklin Mortgage Loan Trust, Series 2006-FF12” and referred to herein as
the “Custodial Account.” The Custodial Account shall be an Eligible Deposit
Account established with an Eligible Institution. Any funds deposited in
the
Custodial Account may be invested in Eligible Investments subject to the
provisions of Section 3.10 hereof. Funds deposited in the Custodial Account
may
be drawn on by the Servicer in accordance with Section 3.04. The creation
of any
Custodial Account shall be evidenced by a letter agreement in the form of
Exhibit B hereto. No later than 30 days after the Closing Date, a copy of
such
certification or letter agreement shall be furnished to the Master Servicer
and
the NIMS Insurer.
The
Servicer shall deposit in the Custodial Account on a daily basis within two
(2)
Business Days of receipt, and retain therein, the following collections received
by the Servicer and payments made by the Servicer after the Cut-off Date
(other
than scheduled payments of principal and interest due on or before the Cut-off
Date) or the Servicing Transfer Date, as applicable:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Prepayment Charges;
(iv) all
Liquidation Proceeds;
(v) to
reimburse itself following a final liquidation of a Mortgage Loan for any
previously unreimbursed Servicing Advances made by the Servicer that it
determines are Nonrecoverable Advances, it being understood, in the case
of each
such reimbursement, that the Servicer’s right thereto shall be prior to the
rights of the Trust Fund;
(vi) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 3.11 (other than proceeds to be held in the Escrow Account and applied
to the restoration and repair of the Mortgaged Property or released to the
Mortgagor in accordance with the related Mortgage Loan documents and Accepted
Servicing Practices);
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(vii) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with the related
Mortgage Loan documents and Accepted Servicing Practices;
(viii) any
other
amount required to be deposited in the Custodial Account pursuant to this
Agreement;
(ix) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Servicer’s own funds, without reimbursement therefor up to a
maximum amount per month of the Servicing Fee actually received for such
month
for the Mortgage Loans;
(x) all
Monthly Advances made by the Servicer pursuant to Section 4.03;
(xi) any
amounts received from the seller of a Mortgage Loan or any other person giving
representations and warranties with respect to the Mortgage Loan, in connection
with the repurchase of any Mortgage Loan;
(xii) any
amounts required to be deposited by the Servicer pursuant to Section 3.11
in
connection with the deductible clause in any blanket hazard insurance policy;
(xiii) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xiv) any
amounts required to be deposited by the Servicer pursuant to Section 3.16
in
connection with any unpaid claims that are a result of a breach by the Servicer
or any Subservicer of the obligations hereunder or under the terms of a PMI
Policy; and
(xv) any
amounts received by the Servicer under a PMI or LPMI Policy.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the Servicing Fee and Ancillary
Income need not be deposited by the Servicer into the Custodial Account.
Any
interest paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Servicer and the Servicer
shall
be entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 3.04. Additionally, any other benefit derived from the
Custodial Account associated with the receipt, disbursement and accumulation
of
principal, interest, taxes, hazard insurance, mortgage insurance, etc. shall
accrue to the Servicer.
Section
3.04. Permitted
Withdrawals From Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
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(i) to
make
payments to the Master Servicer in the amounts and in the manner provided
for in
Section 4.01;
(ii) in
the
event the Servicer has elected not to retain the Servicing Fee out of any
Mortgagor payments on account of interest or other recovery of interest with
respect to a particular Mortgage Loan (including late collections of interest
on
such Mortgage Loan, or interest portions of Insurance Proceeds, Liquidation
Proceeds or Condemnation Proceeds) prior to the deposit of such Mortgagor
payment or recovery in the Custodial Account, to pay to itself the related
Servicing Fee from all such Mortgagor payments on account of interest or
other
such recovery for interest with respect to that Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances,
the
Servicer’s right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and other
amounts received in respect of the related REO Property, and such other amounts
as may be collected by the Servicer from the Mortgagor or otherwise relating
to
such Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer’s right thereto shall be prior to the rights of the
Trust Fund;
(iv) to
pay
itself interest on funds deposited in the Custodial Account;
(v) to
transfer funds to another Eligible Institution in accordance with Section
3.10
hereof;
(vi) to
invest
funds in certain Eligible Investments in accordance with Section 3.10
hereof;
(vii) with
respect to each LPMI Loan, an amount equal to the related LPMI Fee to make
payment of premiums due under the LPMI Policy;
(viii) to
withdraw funds deposited in error; and
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
3.05. Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of
its
own funds and general assets and shall establish and maintain one or more
Escrow
Accounts, in the form of time deposit or demand accounts, titled, “National City
Home Loan Services, Inc. in trust for U.S. Bank National Association, as
Trustee
for the First Franklin Mortgage Loan Trust, Series 2006-FF12.” The Escrow
Accounts shall be an Eligible Deposit Account established with an Eligible
Institution in a manner that shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the
Servicer in accordance with Section 3.06. The creation of any Escrow Account
shall be evidenced by a letter agreement in the form of Exhibit C hereto.
No
later than 30 days after the Closing Date, a copy of such certification or
letter agreement shall be furnished to the Master Servicer and the NIMS
Insurer.
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The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis
within
two (2) Business Days of receipt, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of
this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.06.
The
Servicer shall be entitled to retain any interest paid on funds deposited
in the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required
by
law, the Servicer shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes; provided, that,
the
accounts are maintained at an Eligible Institution selected by the
Servicer.
Section
3.06. Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Servicer for any Servicing Advance made by the Servicer with
respect to a related Mortgage Loan, but only from amounts received on the
related Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required
under
the terms of the related Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Custodial Account
and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 3.15;
(vi) to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
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(vii) to
withdraw funds deposited in error; and
(viii) to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Servicer will be responsible for the administration of the Escrow Accounts
and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this Section 3.06, reimbursable from the Escrow Accounts
or Custodial Account to the extent not collected from the related Mortgagor,
anything to the contrary notwithstanding, when and as necessary to avoid
the
lapse of insurance coverage on the Mortgaged Property, or which the Servicer
knows, or in the exercise of the required standard of care of the Servicer
hereunder should know, is necessary to avoid the loss of the Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Servicer receives notice of a tax lien
with
respect to the Mortgage being imposed, the Servicer will, within ten (10)
Business Days of such notice, advance or cause to be advanced funds necessary
to
discharge such lien on the Mortgaged Property.
Section
3.07. Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust
the
Mortgage Interest Rate on the related interest rate adjustment date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of
the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Servicer or the receipt
of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Monthly Payment in accordance with the terms of
the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
the Seller thereby.
Section
3.08. Reserved.
Section
3.09. Payment
of Taxes, Insurance and Other Charges.
(a) With
respect to each Mortgage Loan which provides for Escrow Payments, the Servicer
shall maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may
become
a lien upon the Mortgaged Property and the status of fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) (“Property
Charges”)
and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow
Account
which shall have been estimated and accumulated by the Servicer in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage.
The
Servicer assumes full responsibility for the timely payment of all such bills
and shall effect timely payment of all such charges irrespective of each
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments, and the Servicer shall make advances from its own funds
to
effect such payments within such time period as will avoid the loss of the
related Mortgaged Property by foreclosure of a tax or other lien.
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(b) To
the
extent that a Mortgage Loan does not provide for Escrow Payments, the Servicer
shall make advances from its own funds to effect payment of all Property
Charges
upon receipt of notice of any failure to pay on the part of the Mortgagor,
or at
such other time as the Servicer determines to be in the best interest of
the
Trust Fund, provided, that in any event the Servicer shall pay such charges
on
or before the earlier of (a) any date by which payment is necessary to preserve
the lien status of the Mortgage or (b) the date which is ninety days after
the
date on which such charges first became due. The Servicer shall pay any late
fee
or penalty which is payable due to any delay in payment of any Property Charge
after the earlier to occur of (a) the date on which the Servicer receives
notice
of the failure of the Mortgagor to pay such Property Charge or (b) the date
which is ninety days after the date on which such charges first became
due.
Section
3.10. Protection
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Eligible Institution from time to time; provided
that in
the event the Custodial Account or any Escrow Account is held in a depository
institution or trust company that ceases to be an Eligible Institution, the
Servicer shall transfer such Custodial Account or Escrow Account, as the
case
may be, to an Eligible Institution; provided,
further, that such transfer shall be made only upon obtaining the consent
of the
NIMS Insurer, which consent shall not be withheld unreasonably, and the Servicer
shall give notice to the Master Servicer of any change in the location of
the
Custodial Account or Escrow Account no later than 30 days after any such
transfer is made and deliver to the Master Servicer and the NIMS Insurer
a
certification notice in the form of Exhibit B or Exhibit C, as applicable,
with
respect to such Eligible Institution.
The
Servicer shall bear any expenses, losses or damages sustained by the Master
Servicer or the Trustee if the Custodial Account and/or the Escrow Account
are
not demand deposit accounts.
Amounts
on deposit in the Custodial Account may at the option of the Servicer be
invested in Eligible Investments. Any such Eligible Investment shall mature
no
later than three days prior to the Remittance Date in each month; provided,
however,
that if
such Eligible Investment is an obligation of an Eligible Institution (other
than
the Servicer) that maintains the Custodial Account, then such Eligible
Investment may mature on the related Remittance Date. Any such Eligible
Investment shall be made in the name of the Servicer in trust for the benefit
of
the Trustee. All income on or gain realized from any such Eligible Investment
shall be for the benefit of the Servicer and may be withdrawn at any time
by the
Servicer. Any losses incurred in respect of any such investment shall be
deposited in the Custodial Account, by the Servicer out of its own funds
immediately as realized. If, at any time, the amount on deposit in the Custodial
Account exceeds the amount of the applicable FDIC insurance, such excess
above
the amount of the applicable FDIC insurance shall be invested in Eligible
Investments.
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Section
3.11. Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer acceptable under Xxxxxx Xxx and Xxxxxxx Mac guidelines
against loss by fire, hazards of extended coverage and such other hazards
as are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (i) the replacement value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the
loss
payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been
made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier rated A:VI or better in the current edition
of
Best’s Key Rating Guide in an amount representing coverage equal to the lesser
of (i) the minimum amount required, under the terms of coverage, to compensate
for any damage or loss on a replacement cost basis (or the unpaid balance
of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during
the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located
in a special flood hazard area and is not covered by flood insurance or is
covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage and
if
said Mortgagor fails to obtain the required flood insurance coverage within
thirty (30) days after such notification, the Servicer shall immediately
force
place the required flood insurance on the Mortgagor’s behalf; provided,
however, that
so
long as the Servicer maintains a blanket insurance policy in accordance with
Section 3.12, the Servicer shall force place the required flood insurance
on the
Mortgagor’s behalf within ninety (90) days after such notification.
If
a
Mortgage is secured by a unit in a condominium project, the Servicer shall
verify that the coverage required of the owner’s association, including hazard,
flood, liability, and fidelity coverage, is being maintained in accordance
with
then current Xxxxxx Xxx requirements, and secure from the owner’s association
its agreement to notify the Servicer promptly of any change in the insurance
coverage or of any condemnation or casualty loss that may have a material
effect
on the value of the Mortgaged Property as security.
The
Servicer shall cause to be maintained on each Mortgaged Property earthquake
or
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
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In
the
event that the Master Servicer or the Servicer shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and
risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Servicer shall communicate and consult
with
the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Servicer as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution,
which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided,
however,
that the
Servicer shall not accept any such insurance policies from insurance companies
unless such companies are rated A:VI or better in Best’s Key Rating Guide and
are licensed to do business in the jurisdiction in which the Mortgaged Property
is located. The Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that
they
properly describe the property address. The Servicer shall furnish to the
Mortgagor a formal notice of expiration of any such insurance in sufficient
time
for the Mortgagor to arrange for renewal coverage by the expiration
date.
Pursuant
to Section 3.04, any amounts collected by the Servicer under any such policies
(other than amounts to be deposited in the Escrow Account and applied to
the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Servicer’s normal servicing procedures as specified in
Section 3.15) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 3.04.
Notwithstanding
anything set forth in the preceding paragraph, the Servicer agrees to indemnify
the Trustee, the NIMS Insurer, the Certificateholders, the Master Servicer
and
the Trust Fund for any claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, fees and expenses
that any such indemnified party may sustain in any way related to the failure
of
the Mortgagor (or the Servicer) to maintain hazard or flood insurance with
respect to the related Mortgaged Property which complies with the requirements
of this section.
Section
3.12. Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 3.11 and otherwise
complies with all other requirements of Section 3.11, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 3.11. Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 3.04. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 3.11, and there shall have been
a loss
which would have been covered by such policy, the Servicer shall deposit
in the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
deposited from the Servicer’s funds, without reimbursement therefor. Upon
request of the Master Servicer, the Trustee or the NIMS Insurer, the Servicer
shall cause to be delivered to such person a certified true copy of such
policy
and a statement from the insurer thereunder that such policy shall in no
event
be terminated or materially modified without 30 days’ prior written notice to
the Master Servicer, the Trustee and the NIMS Insurer.
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Section
3.13. Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Servicer shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with
broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Mortgage Loans (“Servicer
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in
the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond
and Errors and Omissions Insurance Policy also shall protect and insure the
Servicer against losses in connection with the release or satisfaction of
a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 3.13 requiring such Fidelity
Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal
to the
corresponding amounts required by the Xxxxxx Xxx Guides or by Xxxxxxx Mac
in the
Xxxxxxx Xxx Xxxxxxx’ & Servicers’ Guide. Upon the request of the Master
Servicer, the Trustee or the NIMS Insurer, the Servicer shall cause to be
delivered to such party a certified true copy of such fidelity bond and
insurance policy and a statement from the surety and the insurer that such
fidelity bond and insurance policy shall in no event be terminated or materially
modified without 30 days’ prior written notice to the Master Servicer, the
Trustee and the NIMS Insurer.
Section
3.14. Inspections.
The
Servicer shall inspect the Mortgaged Property as often as deemed necessary
by
the Servicer in accordance with Accepted Servicing Practices to assure itself
that the value of the Mortgaged Property is being preserved. In addition,
if any
Mortgage Loan is more than 45 days delinquent, the Servicer immediately shall
inspect the Mortgaged Property and shall conduct subsequent inspections in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer. The Servicer shall keep a written report
of
each such inspection.
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Section
3.15. Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Master Servicer or the Trustee
prior to releasing any Insurance Proceeds or Condemnation Proceeds to the
Mortgagor to be applied to the restoration or repair of the Mortgaged Property
if such release is in accordance with Accepted Servicing Practices. At a
minimum, the Servicer shall comply with the following conditions in connection
with any such release of Insurance Proceeds or Condemnation
Proceeds:
(i) the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Servicer shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
Section
3.16. Maintenance
of PMI and/or LPMI Policy; Claims.
(a) The
Servicer shall comply with all provisions of applicable state and federal
law
relating to the cancellation of, or collection of premiums with respect to,
PMI
Policies, including, but not limited to, the provisions of the Homeowners
Protection Act of 1998, and all regulations promulgated thereunder, as amended
from time to time. The Servicer shall be obligated to make premium payments
with
respect to (i) LPMI Policies, to the extent of the LPMI Fee set forth on
the
Mortgage Loan Schedule with respect to any LPMI Loans, which shall be paid
out
of the interest portion of the related Monthly Payment or, if a Monthly Payment
is not made, from the Servicer’s own funds and (ii) PMI Policies required to be
maintained by the Mortgagor rather than the Seller, if the Mortgagor is required
but fails to pay any PMI Policy premium, which shall be paid from the Servicer’s
own funds. Any premium payments made by the Servicer from its own funds pursuant
to this Section 3.16(a) shall be recoverable by the Servicer as a Servicing
Advance, subject to the reimbursement provisions of Section 3.04(iii).
With
respect to each Mortgage Loan (other than LPMI Loans) with a loan-to-value
ratio
at origination in excess of 80%, the Servicer shall maintain or cause the
Mortgagor to maintain (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance) in full force and effect a PMI Policy,
and
shall pay or shall cause the Mortgagor to pay the premium thereon on a timely
basis, until the Loan-to-Value Ratio of such Mortgage Loan is reduced to
80%. In
the event that such PMI Policy shall be terminated, the Servicer shall obtain
from another Qualified Insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated PMI Policy, at
substantially the same fee level. The Servicer shall not take any action
which
would result in noncoverage under any applicable PMI Policy of any loss which,
but for the actions of the Servicer would have been covered thereunder. In
connection with any assumption or substitution agreements entered into or
to be
entered into with respect to a Mortgage Loan, the Servicer shall promptly
notify
the insurer under the related PMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy
and
shall take all actions which may be required by such insurer as a condition
to
the continuation of coverage under such PMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Servicer shall obtain a replacement PMI Policy as provided above.
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(b) With
respect to each Mortgage Loan covered by a PMI Policy or LPMI Policy, the
Servicer shall take all such actions on behalf of the Trustee as are necessary
to service, maintain and administer the related Mortgage Loan in accordance
with
such policy and to enforce the rights under such policy. Except as expressly
set
forth herein, the Servicer shall have full authority on behalf of the Trust
Fund
to do anything it deems appropriate or desirable in connection with the
servicing, maintenance and administration of such policy; provided
that
the
Servicer shall not take any action to permit any modification or assumption
of a
Mortgage Loan covered by a LPMI or PMI Policy, or take any other action with
respect to such Mortgage Loan, which would result in non-coverage under such
policy of any loss which, but for actions of any Servicer or the Subservicer,
would have been covered thereunder. If the Qualified Insurer fails to pay
a
claim under a LPMI or PMI Policy solely as a result of a breach by the Servicer
or Subservicer of its obligations hereunder or under such policy, the Servicer
shall be required to deposit in the Custodial Account on or prior to the
next
succeeding Remittance Date an amount equal to such unpaid claim from its
own
funds without any rights to reimbursement from the Trust Fund. The Servicer
shall cooperate with the Qualified Insurers and shall furnish all reasonable
evidence and information in the possession of the Servicer to which the Servicer
has access with respect to the related Mortgage Loan; provided,
however,
notwithstanding anything to the contrary contained in any LPMI Policy or
PMI
Policy, the Servicer shall not be required to submit any reports to the related
Qualified Insurer until a reporting date that is at least 15 days after the
Servicer has received sufficient loan level information from the Seller to
appropriately code its servicing systems in accordance with the Qualified
Insurer’s requirements.
(c) In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Trustee, claims to the Qualified Insurer
under any PMI Policy or LPMI Policy in a timely fashion in accordance with
the
terms of such PMI Policy or LPMI Policy and, in this regard, to take such
action
as shall be necessary to permit recovery under any PMI Policy or LPMI Policy
respecting a defaulted Mortgage Loan. Any amounts collected by the Servicer
under any PMI Policy or LPMI Policy shall be deposited in the Custodial Account
pursuant to Section 3.03(xiii) and (xiv), subject to withdrawal pursuant
to
Section 3.04.
(d) The
Trustee shall furnish the Servicer with any powers of attorney and other
documents (within three (3) Business Days upon request from the Servicer)
in
form as provided to it necessary or appropriate to enable the Servicer to
service and administer any PMI or LPMI Policy; provided,
however,
that the
Trustee shall not be liable for the actions of the Servicer under such power
of
attorney.
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(e) The
Servicer shall deposit into the Custodial Account pursuant to Section 3.03(v)
hereof all Insurance Proceeds received under the terms of a PMI Policy or
an
LPMI Policy.
(f) Notwithstanding
the provisions of (a) and (b) above, the Servicer shall not take any action
in
regard to any PMI Policy or LPMI Policy inconsistent with the interests of
the
Trustee or the Certificateholders or with the rights and interests of the
Trustee or the Certificateholders under this Agreement.
Section
3.17. Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Trustee or its nominee in trust for the benefit of the
Certificateholders, or in the event the Trustee is not authorized or permitted
to hold title to real property in the state where the REO Property is located,
or would be adversely affected under the “doing business” or tax laws of such
state by so holding title, the deed or certificate of sale shall be taken
in the
name of such Person or Persons as shall be consistent with an Opinion of
Counsel
obtained by the Servicer from any attorney duly licensed to practice law
in the
state where the REO Property is located. The Person or Persons holding such
title other than the Trustee shall acknowledge in writing that such title
is
being held as nominee for the Trustee.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Trustee solely for the purpose of its prompt disposition and sale. The Servicer,
either itself or through an agent selected by the Servicer, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Trustee and the Certificateholders.
If
the
Servicer hereafter becomes aware that a Mortgaged Property is an Environmental
Problem Property, the Servicer will notify the Master Servicer and the NIMS
Insurer of the existence of the Environmental Problem Property. Additionally,
the Servicer shall set forth in such notice a description of such problem,
a
recommendation to the Master Servicer and the NIMS Insurer relating to the
proposed action regarding the Environmental Problem Property, and the Servicer
shall carry out the recommendation set forth in such notice unless otherwise
directed by the Master Servicer or the NIMS Insurer in writing within five
(5)
days after its receipt (or deemed receipt) of such notice in accordance with
the
terms and provisions of Section 9.04 below. The Master Servicer shall be
provided a copy of the NIMS Insurer’s instructions to the Servicer.
Notwithstanding the foregoing, the Servicer shall obtain the Master Servicer's
and the NIMS Insurer's written consent to any expenditures proposed to remediate
Environmental Problem Properties or to defend any claims associated with
Environmental Problem Properties if such expenses, in the aggregate, are
expected to exceed $100,000. Failure to provide written notice of disapproval
of
the expenditure within five (5) days of receipt (or deemed receipt) of such
request for prepaid expenditures shall be deemed an approval of such
expenditure. The Master Servicer shall be provided with a copy of the NIMS
Insurer’s instructions to the Servicer. If the Servicer has received reliable
instructions to the effect that a Property is an Environmental Problem Property
(e.g., Servicer obtains a broker's price opinion which reveals the potential
for
such problem), the Servicer will not accept a deed-in-lieu of foreclosure
upon
any such Property without first obtaining a preliminary environmental
investigation for the Property satisfactory to the Master Servicer or the
NIMS
Insurer.
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In
the
event that the Trust Fund acquires any REO Property in connection with a
default
or imminent default on a Mortgage Loan, the Servicer shall dispose of such
REO
Property not later than the end of the third taxable year after the year
of its
acquisition by the Trust Fund unless the Servicer has applied for and received
a
grant of extension from the Internal Revenue Service (and provide a copy
of the
same to the NIMS Insurer and the Master Servicer) to the effect that, under
the
REMIC Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a longer
period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the Servicer has
received such an extension (and provided a copy of the same to the NIMS Insurer
and the Master Servicer), then the Servicer shall continue to attempt to
sell
the REO Property for its fair market value for such period longer than three
years as such extension permits (the “Extended Period”). If the Servicer has not
received such an extension and the Servicer is unable to sell the REO Property
within the period ending three months before the end of such third taxable
year
after its acquisition by the Trust Fund or if the Servicer has received such
an
extension, and the Servicer is unable to sell the REO Property within the
period
ending three months before the close of the Extended Period, the Servicer
shall,
before the end of the three-year period or the Extended Period, as applicable,
(i) purchase such REO Property at a price equal to the REO Property’s fair
market value, as acceptable to the NIMS Insurer or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be. The Trustee shall sign
any
document or take any other action reasonably requested by the Servicer which
would enable the Servicer, on behalf of the Trust Fund, to request such grant
of
extension.
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms
that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any
Trust
REMIC to the imposition of any federal income taxes on the income earned
from
such REO Property, including any taxes imposed by reason of Sections 860F
or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund and the NIMS Insurer with respect to the imposition
of
any such taxes.
Prior
to
acceptance by the Servicer of an offer to sell any REO Property, the Servicer
shall notify the Master Servicer and the NIMS Insurer of such offer in writing
which notification shall set forth all material terms of said offer (each
a
“Notice of Sale”). The Master Servicer and/or the NIMS Insurer shall be deemed
to have approved the sale of any REO Property unless either of them notifies
the
Servicer in writing, within three (3) days after its receipt of the related
Notice of Sale, that it disapproves of the related sale, in which case the
Servicer shall not proceed with such sale. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account.
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The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed advances
made pursuant to this Section or Section 4.03.
The
Servicer shall make advances of all funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 3.11, such advances
to be
reimbursed from the disposition or liquidation proceeds of the REO Property.
The
Servicer shall make monthly distributions on each Remittance Date to the
Master
Servicer of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
3.17 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section
3.18. Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish to the Master Servicer, the Credit Risk Manager and the NIMS Insurer
on
or before the Remittance Date in each month a statement with respect to any
REO
Property covering the operation of such REO Property for the previous month
and
the Servicer’s efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information as either
the Master Servicer, the Credit Risk Manager or the NIMS Insurer shall
reasonably request.
Section
3.19. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Trustee pursuant to a deed in lieu of foreclosure, the Servicer shall submit
to
the Trustee and the Master Servicer a monthly liquidation report with respect
to
such Mortgaged Property. In addition, the Servicer shall provide the Master
Servicer a report setting forth Servicing Advances and other expenses incurred
in connection with the liquidation of any Mortgage Loan.
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Section
3.20. Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Servicer
shall report such foreclosure or abandonment as required pursuant to Section
6050J of the Code.
Section
3.21. Prepayment
Charges.
The
Servicer or any designee of the Servicer shall not waive any Prepayment Charge
with respect to any Mortgage Loan which contains a Prepayment Charge which
prepays during the term of the charge. If the Servicer or its designee fails
to
collect the Prepayment Charge upon any prepayment of any Mortgage Loan which
contains a Prepayment Charge, the Servicer shall pay the Trust Fund at such
time
(by deposit to the Custodial Account) an amount equal to amount of the
Prepayment Charge which was not collected. Notwithstanding the above, the
Servicer or its designee may waive (and shall waive, in the case of (ii)(b)
and
(c) below) a Prepayment Charge without paying the Trust Fund the amount of
the
Prepayment Charge if (i) the Mortgage Loan is in default (defined as 61 days
or
more delinquent) and such waiver would maximize recovery of total proceeds
taking into account the value of such Prepayment Charge and the related Mortgage
Loan or (ii) if the prepayment is not a result of a refinancing by the Servicer
or any of its affiliates and (a) the Mortgage Loan is foreseen to be in default
and such waiver would maximize recovery of total proceeds taking into account
the value of such Prepayment Charge and the related Mortgage Loan, (b) the
collection of the Prepayment Charge would be in violation of applicable laws
or
(c)
notwithstanding any state or federal law to the contrary, a Prepayment Charge
in
any instance when a Mortgage Loan is in foreclosure.
Section
3.22. Compliance
with Safeguarding Customer Information Requirements.
The
Servicer has implemented and will maintain security measures designed to
meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information published in final form on February 1,
2001, 66 Fed. Reg. 8616 and the rules promulgated thereunder, as amended
from
time to time (the “Guidelines”).
The
Servicer shall promptly provide the Master Servicer, the Trustee and the
NIMS
Insurer information reasonably available to it regarding such security measures
upon the reasonable request of the Master Servicer, the Trustee and the NIMS
Insurer which information shall include, but not be limited to, any Statement
on
Auditing Standards (SAS) No. 70 report covering the Servicer’s operations, and
any other audit reports, summaries of test results or equivalent measures
taken
by the Servicer with respect to its security measures to the extent reasonably
necessary in order for the Seller to satisfy its obligations under the
Guidelines.
Section
3.23. Credit
Reporting
For
each
Mortgage Loan, the Servicer shall accurately and 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 each of the following credit repositories: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis. In addition, with respect to any Mortgage Loan
serviced for a Xxxxxx Xxx pool, the Servicer shall transmit full credit
reporting data to each of such credit repositories in accordance with Xxxxxx
Mae
Guide Announcement 95-19 (November 11, 1995), a copy of which is attached
hereto
as Exhibit G, reporting each of the following statuses, each month with respect
to a Mortgage Loan in a Xxxxxx Xxx pool: New origination, current, delinquent
(30-60-90-days, etc), foreclosed or charged off.
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ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
Section
4.01. Remittances.
On
each
Remittance Date, no later than 3:00 p.m. New York City time, the Servicer
shall
remit on a scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the Custodial Account
as of the close of business on the last day of the related Due Period (net
of
charges against or withdrawals from the Custodial Account pursuant to Section
3.04), plus (b) all Monthly Advances, if any, which the Servicer is obligated
to
make pursuant to Section 4.03, minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds
or
REO Disposition Proceeds received after the applicable Principal Prepayment
Period, which amounts shall be remitted on the following Remittance Date,
together with any additional interest required to be deposited in the Custodial
Account in connection with such Principal Prepayment in accordance with Section
3.03(viii), and minus (d) any amounts attributable to Monthly Payments collected
but due on a Due Date or Due Dates subsequent to the first day of the month
in
which such Remittance Date occurs, which amounts shall be remitted on the
Remittance Date next succeeding the Due Date related to such Monthly
Payment.
With
respect to any remittance received by the Master Servicer after the first
Business Day following the Business Day on which such payment was due, the
Servicer shall pay to the Master Servicer interest on any such late payment
at
an annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Servicer on the date such late payment is made and shall cover
the period commencing with the day following such second Business Day and
ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of
Default by the Trustee or the Master Servicer.
All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
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JPMorgan
Chase Bank, National Association
ABA#:
000-00-000
Account
Name: Aurora Loan Services LLC
Master
Servicing Payment Clearing Account
Account
Number: 066-611059
Beneficiary:
Aurora Loan Services LLC
For
further credit to: 2006-FF12
Section
4.02. Statements
to Master Servicer.
(a) Not
later
than the tenth (10th)
calendar day of each month (or if such tenth calendar day is not a Business
Day,
the immediately preceding Business Day), the Servicer shall furnish to the
Master Servicer and the NIMS Insurer (i) a monthly remittance advice in the
format set forth in Exhibit D-1 hereto and a monthly defaulted loan report
in
the format set forth in Exhibit D-2 hereto (or in such other format mutually
agreed to between the Servicer and the Master Servicer) relating to the period
ending on the last day of the preceding calendar month and a monthly loan
loss
report in the format set forth in Exhibit D-3 hereto and (ii) all such
information required pursuant to clause (i) above on magnetic tape or other
similar media reasonably acceptable to the Master Servicer. The format of
this
monthly reporting may be amended from time to time to the extent necessary
to
comply with applicable law.
Such
monthly remittance advice shall also be accompanied by a supplemental report
provided to the Master Servicer, the NIMS Insurer and the Seller which includes
on an aggregate basis for the previous Due Period (i) the amount of claims
filed
on any LPMI Policy, (ii) the amount of any claim payments made on any LPMI
Policy, (iii) the amount of claims denied or curtailed on any LPMI Policy
and
(iv) policies cancelled with respect to those Mortgage Loans covered by any
LPMI
Policy purchased by the Seller on behalf of the Trust Fund.
(b) In
addition, not more than 60 days after the end of each calendar year, commencing
December 31, 2006, the Servicer shall provide (as such information becomes
reasonably available to the Servicer) to the Master Servicer and the NIMS
Insurer such information concerning the Mortgage Loans and annual remittances
to
the Master Servicer relating thereto as is necessary for the Master Servicer
to
prepare the Trust Fund’s federal income tax return and for any investor in the
Certificates to prepare any required tax return. Such obligation of the Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Servicer to the Master Servicer
and the NIMS Insurer pursuant to any requirements of the Code as from time
to
time are in force.
(c) The
Servicer shall promptly notify the Trustee, the Master Servicer and the
Depositor (i) of any legal proceedings pending against the Servicer of the
type
described in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Servicer
shall become (but only to the extent not previously disclosed to the NIMS
Insurer, the Master Servicer and the Depositor) at any time an affiliate
of any
of the parties listed on Exhibit J to this Agreement.
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33 -
If
so
requested by the Trustee, the Master Servicer or the Depositor on any date
following the date on which information was first provided to the Trustee,
the
NIMS Insurer and the Depositor pursuant to the preceding sentence, the Servicer
shall, make reasonable best efforts within five (5) Business Days but in
no
event later than ten (10) Business Days following such request, to confirm
in
writing the accuracy of the representations and warranties set forth in
Section 6.01(l) or, if such a representation and warranty is not accurate
as of the date of such request, provide reasonable adequate disclosure of
the
pertinent facts, in writing, to the requesting party.
The
Servicer shall provide to the
Trustee, the NIMS Insurer, the Master Servicer and the Depositor
prompt
notice of the occurrence of any of the following: any event of default under
the
terms of this Agreement, any merger, consolidation or sale of substantially
all
of the assets of the Servicer, the Servicer’s engagement of any Subservicer,
Subcontractor or vendor to perform or assist in the performance of any of
the
Servicer’s obligations under this Agreement, any material litigation involving
the Servicer, and any affiliation or other significant relationship between
the
Servicer and other transaction parties other than the Servicer’s affiliation
with First Franklin, First Franklin Financial Corporation and NatCity
Investments, Inc., which affiliations have already been identified by the
Servicer.
(d) Not
later
than the tenth calendar day of each month (or if such calendar day is not
a
Business Day, the immediately succeeding Business Day), the Servicer shall
provide to the Trustee, the NIMS Insurer, the Master Servicer and the Depositor
notice of the occurrence of any material modifications, extensions or waivers
of
terms, fees, penalties or payments relating to the Mortgage Loans during
the
related Due Period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB) along with all information, data, and materials
related thereto as may be required to be included in the related Distribution
Report on Form 10-D.
Section
4.03. Monthly
Advances by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution, or both, an amount equal to all Monthly Payments (with
interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the
Mortgage Loans during the applicable Due Period and which were delinquent
at the
close of business on the immediately preceding Determination Date. Any amounts
held for future distribution and so used shall be replaced by the Servicer
by
deposit in the Custodial Account on or before any future Remittance Date
if
funds in the Custodial Account on such Remittance Date shall be less than
remittances to the Master Servicer required to be made on such Remittance
Date.
The Servicer shall keep appropriate records of such amounts and will provide
such records to the Master Servicer and the NIMS Insurer upon request.
The
Servicer’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date for the distribution of all Liquidation Proceeds and other payments
or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect
to the related Mortgage Loan.
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34 -
Section
4.04. Due
Dates Other Than the First of the Month.
Mortgage
Loans having Due Dates other than the first day of a month shall be accounted
for as described in this Section 4.04. Any payment due on a day other than
the
first day of each month shall be considered due on the first day of the month
following the month in which that payment is due as if such payment were
due on
the first day of said month. For example, a payment due on August 15 shall
be
considered to be due on September 1 of said month. Any payment collected
on a
Mortgage Loan after the Cut-off Date shall be deposited in the Custodial
Account. For Mortgage Loans with Due Dates on the first day of a month, deposits
to the Custodial Account begin with the payment due on the first of the month
following the Cut-off Date.
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
Section
5.01. Transfers
of Mortgaged Property.
The
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the
person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer shall, to the extent
it has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto, provided,
however,
that the
Servicer shall not exercise such rights if prohibited by law from doing so
or if
the exercise of such rights would impair or threaten to impair any recovery
under the related PMI Policy or LPMI Policy, if any.
If
the
Servicer reasonably believes it is unable under applicable law to enforce
such
“due-on-sale” clause, the Servicer shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Servicer
is
unable under applicable law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
seller
of the Mortgaged Property pursuant to which the original Mortgagor is released
from liability and the seller of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. In connection with
any
such assumption agreement entered into by the Servicer, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan
nor the outstanding principal amount of the Mortgage Loan shall be
changed.
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35 -
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
which are used by the Servicer, its affiliates or Xxxxxx Xxx with respect
to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria,
the
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
Section
5.02. Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
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 shall notify the Master Servicer in the Monthly
Remittance Advice as provided in Section 4.02, and may request the release
of any Mortgage Loan Documents from the Seller in accordance with this
Section 5.02 hereof.
If
the
Servicer satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Servicer
otherwise prejudice any rights the Seller, the Trustee or the Trust Fund
may
have under the mortgage instruments, the Servicer shall deposit into the
Custodial Account the entire outstanding principal balance, plus all accrued
interest on such Mortgage Loan, on the day preceding the Remittance Date
in the
month following the date of such release. The Servicer shall maintain the
Fidelity Bond and Errors and Omissions Insurance Policy as provided for in
Section 3.13 insuring the Servicer against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
Section
5.03. Servicing
Compensation.
As
consideration for servicing the Mortgage Loans subject to this Agreement,
the
Servicer shall retain the relevant Servicing Fee for each Mortgage Loan
remaining subject to this Agreement during any month or part thereof. Such
Servicing Fee shall be payable monthly. Additional servicing compensation
in the
form of Ancillary Income shall be retained by the Servicer and is not required
to be deposited in the Custodial Account. The obligation of the Seller to
pay
the Servicing Fee is limited to, and the Servicing Fee is payable solely
from,
the interest portion (including recoveries with respect to interest from
Liquidation proceeds) of such Monthly Payment collected by the Servicer.
Additional servicing compensation in the form of Ancillary Income shall be
retained by the Servicer and is not required to be deposited in the Custodial
Account. The Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds)
of
such Monthly Payment collected by the Servicer. The
aggregate Servicing Fees for any month with respect to the Mortgage Loans
shall
be reduced by the aggregate Prepayment Interest Shortfall Amount for such
month.
The Servicer shall be obligated to pay the aggregate Prepayment Interest
Shortfall Amount for any month to the extent not covered by the aggregate
Servicing Fees for such month up to a maximum of the aggregate Servicing
Fees
for such month. The Servicer shall be entitled to recover any unpaid Servicing
Fee out of Insurance Proceeds, Condemnation Proceeds, REO Disposition Proceeds
or Liquidation Proceeds to the extent permitted in Section 3.04 and out of
amounts derived from the operation and sale of an REO Property to the extent
permitted by Section 3.17.
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The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
Section
5.04. Report
on Attestation of Compliance with Applicable Servicing
Criteria.
On
or
before March 1st of each calendar year, beginning with March 1, 2007, the
Servicer shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to the Servicer), which is
a
member of the American Institute of Certified Public Accountants, to furnish
to
the Seller, the Trustee, the Depositor, the NIMS Insurer and the Master Servicer
(i) year-end audited (if available) financial statements of the Servicer
and
(ii) a report to the effect that such firm that attests to, and reports on,
the
assessment made by such asserting party pursuant to Section 5.07 below, which
report shall be made in accordance with standards for attestation engagements
issued or adopted by the Public Company Accounting Oversight Board. In addition,
on or before March 1st of each calendar year, beginning with March 1, 2007,
the
Servicer shall, at its own expense, furnish to the Seller, the NIMS Insurer,
the
Trustee, the Depositor and Master Servicer a report meeting the requirements
of
clause (ii) above regarding the attestation of any Subservicer or Subcontractor
which is “participating in the servicing function” within the meaning of Item
1122 of Regulation AB (each, without respect to any threshold limitations
in
Instruction 2. to Item 1122 of Regulation AB, a “Participating
Entity”).
Section
5.05. Servicer
Compliance Statement.
(a) On
or
before March 1st of each calendar year, beginning with March 1, 2007, the
Servicer, at its own expense, will deliver to the Seller, the NIMS Insurer,
the
Trustee, the Depositor and the Master Servicer with respect to the period
ending
on the immediately preceding December 31, a Servicing Officer’s certificate in
the form of Exhibit K hereto, stating, as to each signer thereof, that (1)
a
review of the activities of the Servicer during such preceding calendar year
or
portion thereof and of its performance under this Agreement for such period
has
been made under such Servicing Officer’s supervision and (2) to the best of such
officers’ knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement in all material respects throughout such
year
(or applicable portion thereof), or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such Servicing Officer and the nature and status thereof,
including the steps being taken by the Servicer to remedy such
default.
(b) For
so
long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002, as amended,
(“Xxxxxxxx-Xxxxx”) is required to be given on behalf of the Trust Fund, on or
before March 1st of each calendar year (or if not a Business Day, the
immediately preceding Business Day), beginning with March 1, 2007, a Servicing
Officer shall execute and deliver an Officer’s Certificate to the Master
Servicer, the Trustee and the Depositor for the benefit of the Trust Fund
and
the Master Servicer, the Trustee and the Depositor and their officers, directors
and affiliates, in the form of Exhibit E hereto.
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(c) The
Servicer shall indemnify and hold harmless the Seller, the NIMS Insurer,
the
Trustee, the Master Servicer, the Depositor and their respective officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 5.05 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer and/or the Depositor, then the Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer and/or the Depositor
as a
result of the losses, claims, damages or liabilities of the Master Servicer
and/or the Depositor in such proportion as is appropriate to reflect the
relative fault of the Master Servicer and/or the Depositor on the one hand
and
the Servicer on the other in connection with a breach of the Servicer’s
obligations under this Section 5.05 or the Servicer’s negligence, bad faith or
willful misconduct in connection therewith.
Section
5.06. Inspection.
The
Servicer shall provide the Trustee, the Master Servicer and the NIMS Insurer,
upon reasonable advance notice, during normal business hours, access to all
records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations. Upon request, the Servicer shall furnish to the Trustee, the
Master
Servicer and the NIMS Insurer its most recent publicly available financial
statements and such other information relating to its capacity to perform
its
obligations under this Agreement.
Section
5.07. Report
on Assessment of Compliance with Applicable Servicing
Criteria.
On
or
before March 1st of each calendar year, beginning with March 1, 2007, the
Servicer shall deliver to the Seller, the Trustee, the NIMS Insurer, the
Master
Servicer and the Depositor a report regarding its assessment of compliance
with
the servicing criteria identified in Exhibit I attached hereto, as of and
for
the fiscal year of the trust (which, unless otherwise identified to the Servicer
in writing, shall be the calendar year) for the year prior to the year of
delivery of the report, with respect to asset-backed security transactions
taken
as a whole that are backed by the same asset type backing such asset-backed
securities. Each such report shall include (a) a statement of the party’s
responsibility for assessing compliance with the servicing criteria applicable
to such party, (b) a statement that such party used the criteria identified
in
Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the
applicable servicing criteria, (c) disclosure of any material instance of
noncompliance identified by such party, and (d) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the applicable servicing criteria, which report
shall be delivered by the Servicer as provided in Section 5.07.
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Section
5.08. Opinion
of Counsel; Servicer.
The
Servicer shall provide an Opinion of Counsel within 30 days of the Closing
Date
to the effect that, under the laws of the State of New York, this Agreement
is a
valid, binding and enforceable obligation of the Servicer.
ARTICLE
VI.
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
Section
6.01. Representations,
Warranties and Agreements of the Servicer.
The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the
Master
Servicer, the Depositor and the Trustee, as of the Closing Date:
(a) Due
Organization and Authority.
The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and is an operating subsidiary of National City
Bank.
As a national bank operating subsidiary, it is regulated by the Office of
the
Comptroller of the Currency and is subject to applicable laws and regulations.
The Servicer is authorized to carry on its business as now being conducted
as an
operating subsidiary of a national bank. The Servicer has the full corporate
power and authority to execute and deliver this Agreement and to perform
in
accordance herewith; the execution, delivery and performance of this Agreement
(including all instruments or transfer to be delivered pursuant to this
Agreement) by the Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement evidences the
valid, binding and enforceable obligation of the Servicer, regardless of
whether
such enforcement is sought in equity or at law; and all requisite corporate
action has been taken by the Servicer to make this Agreement valid and binding
upon the Servicer in accordance with its terms, subject to (1) bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, including, without limitation,
the effect of statutory or other laws regarding fraudulent conveyances or
preferential transfers, and (2) general principles of equity upon the specific
enforceability of any of the remedies, covenants or other provisions of the
Agreement and upon the availability of injunctive relief or other equitable
remedies and the application of principles of equity (regardless of whether
such
enforceability is considered in a proceeding in equity or at law) as such
principles relate to, limit or affect the enforcement of creditors’ rights
generally and the discretion of the court before which any proceeding for
such
enforcement may be brought;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the servicing
responsibilities by the Servicer or the transactions contemplated hereby,
nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s charter or by-laws or any legal
restriction or any agreement or instrument to which the Servicer is now a
party
or by which it is bound, or constitute a default under any of the foregoing
or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Servicer
or
its property is subject, or impair the ability of the Servicer to service
the
Mortgage Loans, or impair the value of the Mortgage Loans;
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(d) Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(e) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending (or known to be
contemplated) or, to the Servicer’s knowledge or threatened against the Servicer
which, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Servicer or any Subservicer, or in any material
impairment of the right or ability of the Servicer or any Subservicer to
carry
on its business substantially as now conducted, or in any material liability
on
the part of the Servicer or any Subservicer or which would draw into question
the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or which
would be likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement;
(f) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement, or if required, such approval
has been obtained prior to the Closing Date;
(g) No
Default.
The
Servicer is not in default, and no event or condition exists that after the
giving of notice or lapse of time or both, would constitute an event of default
under any material mortgage, indenture, contract, agreement, judgment, or
other
undertaking, to which the Servicer is a party or which purports to be binding
upon it or upon any of its assets, which default could impair materially
the
ability of the Servicer to perform under the terms of this
Agreement;
(h) [Reserved]
(i) No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not misleading;
(j) No
Commissions to Third Parties.
The
Servicer has not dealt with any broker or agent or anyone else who might
be
entitled to a fee or commission in connection with this transaction other
than
the Seller;
(k) Fair
Credit Reporting Act.
The
Servicer has fully furnished, 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 repositories)
on
a monthly basis; and
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(l) Additional
Representations and Warranties of the Servicer.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor
and
the Trustee prior to the Closing Date: (i)
the Servicer is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Servicer; (ii)
the
Servicer has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as servicer
has been disclosed or reported by the Servicer; (iv) no material
changes to the Servicer’s policies or procedures with respect to the servicing
function it will perform under this Agreement for mortgage loans of a type
similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the Closing
Date; (v) there are no aspects of the Servicer’s financial condition that could
have a material adverse effect on the performance by the
Servicer of its servicing obligations under this Agreement
and (vi) there are no affiliations, relationships or transactions relating
to
the Servicer or any Subservicer with any party listed on Exhibit J hereto
other
than the Servicer’s affiliation with First Franklin and First Franklin Financial
Corporation, which affiliations have already been identified by the
Servicer.
Section
6.02. Remedies
for Breach of Representations and Warranties of the Servicer.
It
is
understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the engagement of the Servicer to perform the
servicing responsibilities as of the Closing Date hereunder and the delivery
of
the Servicing Files to the Servicer and shall inure to the benefit of the
Master
Servicer, the NIMS Insurer and the Trustee. Upon discovery by either the
Servicer, the Master Servicer, the NIMS Insurer or the Trustee of a breach
of
any of the foregoing representations and warranties which materially and
adversely affects the ability of the Servicer to perform its duties and
obligations under this Agreement or otherwise materially and adversely affects
the value of the Mortgage Loans, the Mortgaged Property or the priority of
the
security interest on such Mortgaged Property or the interests of the Master
Servicer, the NIMS Insurer or the Trustee, the party discovering such breach
shall give prompt written notice to the other.
Within
60
days of (or, in the case of any breach of a representation or warranty set
forth
in Section 6.01(l), 5 days) the earlier of either discovery by or notice to
the Servicer of any breach of a representation or warranty set forth in Section
6.01 which materially and adversely affects the ability of the Servicer to
perform its duties and obligations under this Agreement or otherwise materially
and adversely affects the value of the Mortgage Loans, the Mortgaged Property
or
the priority of the security interest on such Mortgaged Property, the Servicer
shall use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at the Trustee’s or the
Master Servicer’s option, assign the Servicer’s rights and obligations under
this Agreement (or respecting the affected Mortgage Loans) to a successor
servicer. Such assignment shall be made in accordance with Section
9.01.
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In
addition, the Servicer shall indemnify the Master Servicer, the Trustee and
the
NIMS Insurer (and each of their respective directors, officers, employees
and
agents) and hold each of them harmless against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Servicer’s representations and warranties contained in Section
6.01.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 6.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Master
Servicer, the Depositor or the Trustee to the Servicer, (ii) failure by the
Servicer to cure such breach within the applicable cure period, and (iii)
demand
upon the Servicer by the Master Servicer, the NIMS Insurer or the Trustee
for
compliance with this Agreement.
Section
6.03. Additional
Indemnification by the Servicer.
The
Servicer shall indemnify the Seller, the Depositor, the Trustee, the Master
Servicer, the NIMS Insurer, the Trust Fund and each of their respective
directors, officers, employees and agents and the Trust Fund and shall hold
each
of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain solely and directly
arising out of or based upon:
(A) any
failure by the Servicer, any Subservicer or any Subcontractor to deliver
any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, including any report under
Sections 5.04, 5.05 and 5.07 or any failure by the Servicer to identify
pursuant to Section 7.04(c) any Subcontractor that is a Participating
Entity; or
(B) the
failure of the Servicer to perform its duties and service the Mortgage Loans
in
material compliance with the terms of this Agreement.
In
the
case of any failure of performance described in clause (A) of this Section
6.03,
the Servicer shall promptly reimburse the Trustee, the Master Servicer or
the
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to the transaction relating to this Agreement, or for execution of
a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to this transaction, for all costs reasonably incurred by
each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the Servicer,
any Subservicer or any Subcontractor.
The
Servicer shall promptly notify the Seller, the Master Servicer, the Depositor,
the Trustee, the NIMS Insurer or the Trust Fund if a legal claim is made
by a
third party with respect to this Agreement or the Mortgage Loans
that may
result in such Liabilities, and the Servicer shall assume (with the prior
written consent of the indemnified party) the defense of any such claim and
pay
all expenses in connection therewith, including counsel fees, promptly pay,
discharge and satisfy any judgment or decree which may be entered against
it or
any indemnified party in respect of such claim and follow any written
instructions received from the such indemnified party in connection with
such
claim. The Servicer shall be reimbursed promptly from the Trust Fund for
all
amounts advanced by it pursuant to the preceding sentence except when the
claim
is in any way related to the Servicer’s indemnification pursuant to Section
6.02, or the failure of the Servicer to service and administer the Mortgage
Loans in accordance with the terms of this Agreement. In
the
event a dispute arises between the Servicer and an indemnified party with
respect to any of the rights and obligations of the parties pursuant to this
Agreement, and such dispute is adjudicated in a court of law, by an arbitration
panel or any other judicial process, then the losing party (if the Trustee,
the
Trust Fund) shall indemnify and reimburse the winning party for all attorney’s
fees and other costs and expenses related to the adjudication of said
dispute.
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Section
6.04. Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the Holder of the related Residual Certificate,
the
Master Servicer, the Trustee, the Trust Fund and the NIMS Insurer (and each
of
their respective directors, officers, employees and agents) against any and
all
losses, claims, damages, liabilities or expenses (“Losses”) resulting from such
negligence; provided,
however,
that the
Servicer shall not be liable for any such Losses attributable to the action
or
inaction of the Trustee, the Master Servicer, the Depositor or the Holder
of
such Residual Certificate, as applicable, nor for any such Losses resulting
from
misinformation provided by the Holder of such Residual Certificate on which
the
Servicer has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate, the Trustee
and
the Trust Fund or the NIMS Insurer now or hereafter existing at law or in
equity
or otherwise. Notwithstanding the foregoing, however, in no event shall the
Servicer have any liability (1) for any action or omission that is taken
in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Servicer of its duties
and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates).
Section
6.05. Purchase
of Distressed Mortgage Loans.
The
NIMS
Insurer may, at its option, purchase a Distressed Mortgage Loan; provided,
however,
prior
to any such purchase, the Servicer shall be required to continue to make
Monthly
Advances with respect to such Distressed Mortgage Loans pursuant to Section
4.03. Any such purchase shall be accomplished by remittance to the Master
Servicer of the Purchase Price for the Distressed Mortgage Loan for deposit
into
the Collection Account established by the Master Servicer pursuant to the
Trust
Agreement. The Trustee and the Servicer shall immediately effectuate the
conveyance of the purchased Distressed Mortgage Loan to the NIMS Insurer
exercising the purchase option, including prompt delivery of the Servicing
File
and all related documentation to the applicable NIMS Insurer.
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Section
6.06. Reporting
Requirements of the Commission and Indemnification.
Notwithstanding
any other provision of this Agreement, the Servicer acknowledges and agrees
that
the purpose of Sections 4.02(c) and (d), 5.04, 5.05, 5.07, 6.01(l), 6.03
and 7.04 of this Agreement is to facilitate compliance by the Trustee, the
Master Servicer and the Depositor with the provisions of Regulation AB.
Therefore, the Servicer agrees that (a) the obligations of the Servicer
hereunder shall be interpreted in such a manner as to accomplish that purpose,
(b) such obligations may change over time due to interpretive advice or guidance
of the Commission, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect
of
the requirements of Regulation AB, (c) the Servicer shall agree to enter
into
such amendments to this Agreement as may be necessary, in the judgment of
the
Depositor, the Master Servicer, the Servicer, as mutually agreed, and their
respective counsel, to comply with such interpretive advice or guidance,
convention, consensus, advice of counsel, or otherwise, (d) the Servicer
shall
otherwise comply with reasonable requests made by the Trustee, the Master
Servicer or the Depositor for delivery of additional or different information,
where mutually agreed to by the Servicer and requesting party, as such parties
may determine in good faith is necessary to comply with the provisions of
Regulation AB and (e) the Servicer shall (i) agree to such modifications
and
enter into such amendments to this Agreement as may be necessary, in the
judgment of the Depositor, the Master Servicer, the Servicer and their
respective counsel, to comply with any such clarification, interpretive
guidance, convention or consensus and (ii) promptly upon request provide
to the
Depositor for inclusion in any periodic report required to be filed under
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), such items of
information regarding this Agreement and matters related to the Servicer,
(collectively, the “Servicer Information”), provided that such information shall
be required to be provided by the Servicer only to the extent that such shall
be
determined by the Depositor and its counsel, as mutually agreed to by the
Servicer and its counsel (which agreement shall not be unreasonably withheld),
to be necessary or advisable to comply with any Commission and industry
guidance.
The
Servicer hereby agrees to indemnify and hold harmless the Depositor, the
Master
Servicer, their respective officers and directors and each person, if any,
who
controls the Depositor or Master Servicer within the meaning of Section 15
of
the Securities Act of 1933, as amended (the “Act”), or Section 20 of the
Exchange Act, from and against any and all losses, claims, expenses, damages
or
liabilities to which the Depositor, the Master Servicer, their respective
officers or directors and any such controlling person may become subject
under
the Act or otherwise, as and when such losses, claims, expenses, damages
or
liabilities are incurred, insofar as such losses, claims, expenses, damages
or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Servicer Information or arise out of, or are based upon, the omission
or
alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
the
Depositor, the Master Servicer, their respective officers and directors and
any
such controlling person for any legal or other expenses reasonably incurred
by
it or any of them in connection with investigating or defending any such
loss,
claim, expense, damage, liability or action, as and when incurred; provided,
however,
that the
Servicer shall be liable only insofar as such untrue statement or alleged
untrue
statement or omission or alleged omission relates solely and directly to
the
information in the Servicer Information furnished to the Depositor or Master
Servicer by or on behalf of the Servicer specifically in connection with
this
Agreement.
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ARTICLE
VII.
THE
SERVICER
Section
7.01. Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
Delaware corporation, and shall obtain and preserve its qualification to
do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto,
anything herein to the contrary notwithstanding, provided,
however,
that the
successor or surviving Person shall be an institution (i) having a net worth
of
not less than $25,000,000, and (ii) which is a Xxxxxx Xxx- and Xxxxxxx
Mac-approved servicer in good standing.
Section
7.02. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Master Servicer, the NIMS Insurer,
the Depositor or the Trustee for any action taken or for refraining from
the
taking of any action in good faith pursuant to this Agreement, or for errors
in
judgment; provided,
however,
that
this provision shall not protect the Servicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of
any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under
any obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may involve it in any expense or liability,
provided,
however,
that the
Servicer may undertake any such action which it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto.
In
such event, the Servicer shall be entitled to reimbursement from the Trust
Fund
for the reasonable legal expenses and costs of such action.
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Section
7.03. Limitation
on Resignation and Assignment by the Servicer.
This
Agreement has been entered into with the Servicer in reliance upon the
independent status of the Servicer, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, except as expressly provided in this Section 7.03 and Sections
3.21
and 7.01, the Servicer shall neither assign its rights under this Agreement
or
the servicing hereunder nor delegate its duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets without, in each case, the prior written consent of the
Seller, the Master Servicer, the Trustee and the NIMS Insurer which consent,
in
the case of an assignment of rights or delegation of duties, shall be granted
or
withheld in the discretion of the Seller, the Master Servicer, Trustee and
the
NIMS Insurer and which consent, in the case of a sale or disposition of all
or
substantially all of the property or assets of the Servicer, shall not be
unreasonably withheld by any of them; provided, that in each case, there
must be
delivered to the Seller, the Master Servicer, the Trustee and the NIMS Insurer
a
letter from each Rating Agency to the effect that such transfer of servicing
or
sale or disposition of assets will not result in a qualification, withdrawal
or
downgrade of the then-current rating of any of the Certificates or the NIM
Securities to be issued in the NIMS Transaction.
Notwithstanding the foregoing, the Servicer, without the consent of the Seller,
the Master Servicer, the Trustee or the NIMS Insurer, may retain third party
contractors to perform certain servicing and loan administration functions,
including without limitation, hazard insurance administration, tax payment
and
administration, flood certification and administration, collection services
and
similar functions; provided, that the retention of such contractors by Servicer
shall not limit the obligation of the Servicer to service the Mortgage Loans
pursuant to the terms and conditions of this Agreement.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer, the Master Servicer, the Trustee
and
the NIMS Insurer or upon the determination that its duties hereunder are
no
longer permissible under applicable law and such incapacity cannot be cured
by
the Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Seller, the Master Servicer, the Trustee and the NIMS Insurer which Opinion
of
Counsel shall be in form and substance reasonably acceptable to each of them.
No
such resignation shall become effective until a successor shall have assumed
the
Servicer’s responsibilities and obligations hereunder in the manner provided in
Sections 8.01 and 9.01.
Without
in any way limiting the generality of this Section 7.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell
or
otherwise dispose of all or substantially all of its property or assets,
except
to the extent permitted by and in accordance with this Section 7.03 and Sections
3.21 and 7.01, without the prior written consent of the Seller, the Master
Servicer, the Trustee and the NIMS Insurer, then such parties shall have
the
right to terminate this Agreement upon notice given as set forth in Section
8.01, without any payment of any penalty or damages and without any liability
whatsoever to the Servicer or any third party.
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Section
7.04. Subservicing
Agreements and Successor Subservicer.
(a)
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph (b) of this
Section 7.04 and the proposed Subservicer (i) is an institution which is
an
approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated in writing,
(ii)
represents and warrants that it is in compliance with the laws of each state
as
necessary to enable it to perform its obligations under such subservicing
agreement and (iii) is acceptable to the NIMS Insurer. The Servicer shall
not
hire or otherwise utilize the services of any Subcontractor, and shall not
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Servicer as servicer
under this Agreement unless the Servicer complies with the provisions of
paragraph (c) of this Section 7.04.
(b)
The
Servicer shall give prior written notice to the Trustee, the Master Servicer,
the Depositor and the NIMS Insurer of the appointment of any Subservicer
and
shall furnish to the Trustee, Master Servicer, the Depositor and the NIMS
Insurer a copy of any related subservicing agreement. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on Mortgage
Loans immediately upon receipt by any Subservicer of such payments. Any such
subservicing agreement shall be consistent with and not violate the provisions
of this Agreement. Each subservicing agreement shall provide that a successor
Servicer shall have the option to terminate such agreement without payment
of
any fees if the predecessor Servicer is terminated or resigns. The Servicer
shall cause any Subservicer used by the Servicer (or by any Subservicer)
to
comply with the provisions of this Section 7.04 and with Sections 4.02(c),
5.04, 5.05(a), 5.05(b), 5.07 (and shall amend, with the consent of the parties
hereto, Exhibit I to reflect such Subservicer’s attestation of compliance with
the Servicing Criteria), 6.01(l) and 6.03 of this Agreement to the same extent
as if such Subservicer were the Servicer. The Servicer shall be responsible
for
obtaining from each Subservicer and delivering to the Trustee, the NIMS Insurer,
the Master Servicer and the Depositor any servicer compliance statement required
to be delivered by such Subservicer under Section 5.05(a), any reports on
assessment of compliance and attestation required to be delivered by such
Subservicer under Sections 5.04 and 5.07 and any certification required to
be
delivered under 5.05(b) to the Person that will be responsible for signing
the
Sarbanes Certification under Section 5.07 as and when required to be delivered
hereunder.
(c)
The
Servicer shall give prior written notice to the Master Servicer and the
Depositor of the appointment of any Subcontractor and a written description
(in
form and substance satisfactory to the Master Servicer and the Depositor)
of the
role and function of each Subcontractor utilized by the Servicer or any
Subservicer, specifying (A) the identity of each such Subcontractor, (B)
which
(if any) of such Subcontractors are Participating Entities, and (C) which
elements of the servicing criteria set forth under Item 1122(d) of Regulation
AB
will be addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (B) of this paragraph.
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As
a
condition to the utilization of any Subcontractor determined to be a
Participating Entity, the Servicer shall cause any such Subcontractor used
by
the Servicer (or by any Subservicer) for the benefit of the Trustee, the
NIMS
Insurer, the Master Servicer and the Depositor to comply with the provisions
of
Sections 4.02(c), 5.04, 5.07 (and shall amend, with the consent of the
parties hereto, Exhibit I to reflect such Subcontractor’s attestation with the
Servicing Criteria), 6.01(l) and 6.03 of this Agreement to the same extent
as if
such Subcontractor were the Servicer. The Servicer shall be responsible for
obtaining from each Subcontractor and delivering to the Trustee, the NIMS
Insurer, the Master Servicer and the Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under
Sections 5.04 and 5.07, in each case as and when required to be delivered.
The
Servicer acknowledges that a Subservicer or Subcontractor that performs services
with respect to mortgage loans involved in this transaction in addition to
the
Mortgage Loans may be determined to be a Participating Entity on the basis
of
the aggregate balance of such mortgage loans (which quantitative determination
may be made by the Depositor, the Trustee or the Master Servicer), without
regard to whether such Subservicer or Subcontractor would be a Participating
Entity with respect to the Mortgage Loans viewed in isolation. The Servicer
shall (A) respond as promptly as practicable to any good faith request by
the
Trustee, the Master Servicer or the Depositor for information regarding each
Subservicer and each Subcontractor and (B) cause each Subservicer and each
Subcontractor with respect to which the Trustee, the Master Servicer or the
Depositor requests delivery of an assessment of compliance and accountants’
attestation to deliver such within the time required under
Section 5.07.
Notwithstanding
any subservicing agreement or the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer, Subcontractor
or other third party or reference to actions taken through a Subservicer,
a
Subcontractor, another third party or otherwise, the Servicer shall remain
obligated and primarily liable to the Trust Fund, the Trustee, the Master
Servicer, the NIMS Insurer and the Certificateholders for the servicing and
administering of the Mortgage Loans in accordance with the provisions hereof
without diminution of such obligation or liability by virtue of any
subservicing, subcontracting or other agreements or arrangements or by virtue
of
indemnification from a Subservicer, Subcontractor or a third party and to
the
same extent and under the same terms and conditions as if the Servicer alone
were servicing the Mortgage Loans, including with respect to compliance with
Item 1122 of Regulation AB. The Servicer shall be entitled to enter into
any
agreement with a Subservicer, Subcontractor or a third party for indemnification
of the Servicer by such Subservicer, Subcontractor or third party and nothing
contained in the Agreement shall be deemed to limit or modify such
indemnification.
ARTICLE
VIII.
TERMINATION
Section
8.01. Termination
for Cause.
(a) Any
of
the following occurrences shall constitute an event of default (each, an
“Event
of Default”) on the part of the Servicer:
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(i) any
failure by the Servicer to remit to the Master Servicer any payment required
to
be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Master Servicer or the NIMS Insurer; or
(ii) any
failure by the Servicer to duly perform, within the required time period
and
without notice, its obligations to provide any certifications required pursuant
to Sections 5.04, 5.05 or 5.07 (including with respect to such certifications
required to be provided by any Subservicer or Subcontractor pursuant to Section
7.04), which failure continues unremedied for a period of ten (10) Business
Days
from the date of delivery required with respect to such certification; or
(iii) except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, without notice
or
grace period, its obligations to provide any other information, data or
materials required to be provided hereunder pursuant to Sections 4.02(c),
4.02(d), 6.01(l) and 7.04, including any items required to be included in
any
Exchange Act report; or
(iv) failure
by the Servicer duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Servicer set forth in this
Agreement which continues unremedied for a period of 15 days after the date
on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Servicer by the Master Servicer or the NIMS Insurer;
or
(v) failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located,
where the failure to maintain such license will have a material adverse effect
on the Servicer’s ability to service the Mortgage Loans; or
(vi) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Servicer and such decree or
order
shall have remained in force undischarged or unstayed for a period of 60
days;
or
(vii) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling 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
(viii) the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
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(ix) the
Servicer attempts, without the consent of the Master Servicer, the Seller
and
the Trustee, to assign the servicing of the Mortgage Loans or its right to
servicing compensation hereunder or the Servicer attempts to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof in a manner not permitted under this Agreement;
or
(x) if
any of
the Rating Agencies reduces or withdraws the rating of any of the Certificates
due to a reason attributable to the Servicer or (y) the Servicer’s residential
primary servicer rating for servicing of subprime loans issued by any of
the
Rating Agencies is reduced below its rating in effect on the Closing Date
or
withdrawn; or
(xi) the
net
worth of National City Bank (or any successor parent of the Servicer) shall
be
less than $25,000,000.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Master Servicer, the Trustee
or
the NIMS Insurer may have at law or equity to damages, including injunctive
relief and specific performance, the Master Servicer, the Trustee or the
NIMS
Insurer, by notice in writing to the Servicer, may terminate all the rights
and
obligations of the Servicer under this Agreement and in and to the servicing
contract established hereby and the proceeds thereof.
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer under this Agreement, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in a successor servicer appointed
by the
Trustee or the Master Servicer, as the case may be, with the consent of the
other party and the NIMS Insurer. Upon written request from the Master Servicer,
the Servicer shall prepare, execute and deliver to the successor entity
designated by the Master Servicer any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at
the
Servicer’s sole expense. The Servicer shall cooperate with the Seller, the
Master Servicer, the NIMS Insurer, the Trustee and such successor in effecting
the termination of the Servicer’s responsibilities and rights hereunder,
including without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Servicer
to
the Custodial Account or Escrow Account or thereafter received with respect
to
the Mortgage Loans.
By
a
written notice, the Trustee or the Master Servicer, with the consent of the
other parties and the NIMS Insurer, may waive any default by the Servicer
in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
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Section
8.02. Termination
Without Cause.
This
Agreement shall terminate upon: (i) the later of (a) the distribution of
the
final payment or liquidation proceeds on the last Mortgage Loan to the Master
Servicer (or advances by the Servicer for the same), and (b) the disposition
of
all REO Property acquired upon foreclosure of the last Mortgage Loan and
the
remittance of all funds due hereunder, or (ii) mutual consent of the Servicer,
the Seller and the Master Servicer in writing provided that prior written
confirmation has been obtained from the Rating Agencies and such termination
is
also acceptable to the NIMS Insurer or (iii) with respect to some or all
of the
Mortgage Loans, at the sole option of the Seller, without cause, upon 30
days
written notice, subject to the limitations set forth below. Any such notice
of
termination shall be in writing and delivered to the Trustee, the Master
Servicer, the NIMS Insurer and the Servicer by registered mail to the address
set forth in Section 9.04 of this Agreement. The Servicer shall comply with
the
termination procedures set forth in Sections 8.01, 8.02 and 9.01 hereof.
In
the
event the Seller terminates the Servicer without cause with respect to some
or
all of the Mortgage Loans in accordance with Section 8.02(iii) above (other
than
Distressed Mortgage Loans), the Seller shall be required to pay to the Servicer
a Termination Fee in an amount equal to the product of the Termination Fee
Percentage and the outstanding principal balance of the terminated Mortgage
Loans as of the date of such termination; provided, that no Termination Fee
shall be paid or payable with respect to the unpaid principal balance of
any
terminated Distressed Mortgage Loan.
Section
8.03. Special
Termination Events.
If,
as of
any date of determination, any of the following circumstances shall exist
with
respect to the Mortgage Loans (each, a “Trigger
Event”)
(in
each case calculated by the Master Servicer), subject to the prior written
consent of the NIMS Insurer, the Master Servicer and the Seller shall have
the
right, by notice in writing to the Servicer, to terminate all of the rights
and
obligations of the Servicer under this Agreement:
(i) the
“60
Day Delinquency Average” of the Mortgage Loans exceeds twelve percent (12%) of
the unpaid principal balance of the Mortgage Loans. As used herein, the
“60
Day
Delinquency Average”
is
equal to the average percentage, as of the end of the Due Periods relating
to
the three immediately preceding Remittance Dates, of the scheduled principal
balance of all Mortgage Loans that are (i) 60 or more days delinquent (but
not
in bankruptcy or foreclosure and which have not become REO Properties), (ii)
in
bankruptcy and 60 or more days delinquent, (iii) in foreclosure and 60 or
more
days delinquent or (iv) REO Properties; or
(ii) as
of any
date, the “Realized Losses” for the Mortgage Loans for the then most recent
twelve month period exceeds 1.50% of the unpaid principal balance of the
such
Mortgage Loans as of the beginning of such twelve (12) month period. As used
herein, with respect to any liquidated Mortgage Loan, the related “Realized
Loss”
is
amount equal to (i) the unpaid principal balance of the related liquidated
Mortgage Loan as of the date of liquidation, minus (ii) Liquidation Proceeds
received, to the extent allocable to principal, net of amounts that are
reimbursable therefrom to the Servicer with respect to such Mortgage Loan
including expenses of liquidation; or
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(iii) the
cumulative Realized Losses for the Mortgage Loans, calculated as a percentage
of
the Cut-Off Date principal balance of the Mortgage Loans exceeds the percentage
set forth in the first column below at any time during the corresponding
period
from the Closing Date set forth in the second column below:
|
Trigger
Percentage
|
Applicable
Period from Closing Date
|
|
1.75%
|
From
the Closing Date through the end of 12th
complete calendar month following the Closing Date
|
|
2.25%
|
From
the 13th
calendar month following the Closing Date through the end of the
24th
complete calendar month following the Closing Date
|
|
3.00%
|
From
the 25th
calendar
month following the Closing Date through end of the 36th
complete calendar month following the Closing Date
|
|
3.50%
|
From
37th
calendar month following Closing Date through end of 48th
complete calendar month following the Closing Date
|
|
4.25%
|
At
any time after the end of the 48th
complete calendar month following the Closing Date
|
Upon
receipt by the Servicer of a written termination notice pursuant to this
Section
8.03, all authority and power of the Servicer under this Agreement, whether
with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in
a
successor servicer appointed by the Seller, with the consent of the Trustee,
the
Master Servicer and the NIMS Insurer. Upon written request from the Master
Servicer, the Servicer shall prepare, execute and deliver to the successor
entity designated by the Seller any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at
the
Servicer’s sole expense. The Servicer shall cooperate with the Seller, the
Master Servicer, the NIMS Insurer and the Trustee and such successor in
effecting the termination of the Servicer’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the related Mortgage Loans.
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By
a
written notice, the Seller may waive any Trigger Event hereunder and its
consequences. Upon any waiver of a Trigger Event in any period, such event
shall
cease to exist for such period. No such waiver shall extend to any subsequent
or
other default or Trigger Event or impair any right consequent thereon except
to
the extent expressly so waived.
No
Termination Fee shall be payable to the Servicer upon a termination pursuant
to
this Section 8.03.
Section
8.04. Termination
for Distressed Mortgage Loans.
(a) Subject
to the requirements set forth in this Section 8.04, the Seller may terminate
this Agreement with the prior consent of the Trustee, the NIMS Insurer and
the
Master Servicer, with respect to the servicing of those Mortgage Loans that
are
determined to be Distressed Mortgage Loans and in such event servicing of
such
Mortgage Loans shall be transferred to the Special Servicer. The appointment
of
a Special Servicer by the Seller and the execution of a special servicing
agreement between the Seller and the Special Servicer shall be subject to
the
consent of the Trustee, the Master Servicer and the NIMS Insurer and the
receipt
of confirmation from the Rating Agencies that the transfer of servicing to
the
Special Servicer shall not result in a reduction of any rating previously
given
by such Rating Agency to any Certificate or the NIMS Securities. Any monthly
fee
paid to the Special Servicer in connection with any Mortgage Loan serviced
by
such Special Servicer shall not exceed one-twelfth of the product of
(a) 0.50% and (b) the outstanding principal balance of such Mortgage Loan.
All unreimbursed Servicing Fees, Servicing Advances and Monthly Advances
owing
to the Servicer relating to such Distressed Mortgage Loans shall be reimbursed
and paid to the Servicer by the successor Special Servicer upon such transfer
to
the Special Servicer.
(b) All
reasonable costs and expenses incurred in connection with a transfer of
servicing to the Special Servicer including, without limitation, the costs
and
expenses of the Trustee or any other Person in connection with such transfer
including the transfer of the Servicing Files and the other necessary data
to
the Special Servicer, shall be paid by the Seller from its own funds without
reimbursement. The Seller shall be responsible for the delivery of all required
transfer notices and will send a copy of the transfer notice to the
Trustee.
(c) Notwithstanding
the foregoing provisions of this Section 8.04, the NIMS Insurer may, at its
option, withhold their consent to the transfer of a Distressed Mortgage Loan
to
a Special Servicer and elect to purchase such Distressed Mortgage Loan at
a
price equal to its Purchase Price. Prior to such purchase, the Servicer shall
be
required to continue to make Monthly Advances with respect to such Distressed
Mortgage Loan pursuant to Section 4.03. Any such purchase of a Distressed
Mortgage Loan shall be accomplished by remittance to the Master Servicer
for
deposit in the Collection Account established pursuant to Section 4.01 of
the
Trust Agreement of the amount of the Purchase Price. The Servicer, on behalf
of
the Trustee, shall take reasonable steps to effectuate the transfer of servicing
of such Distressed Mortgage Loan to the NIMS Insurer to the extent necessary,
including the prompt delivery of all Servicing Files and other related
documentation to the NIMS Insurer or its designee.
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(d) No
Termination Fee shall be payable to the Servicer upon a termination pursuant
to
this Section 8.04.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01. Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 6.04, 7.03, 8.01 or 8.02, the Master
Servicer shall (i) within 90 days of the Servicer’s notice of such termination,
succeed to and assume all of the Servicer’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer’s responsibilities, duties and liabilities under
this Agreement; or (b) pursuant to a termination under Section 8.02(a)(iii)
or
Section 8.03, the Seller shall appoint a successor having the characteristics
set forth in clauses (i) and (ii) of Section 7.01 and which shall succeed
to all
rights and assume all of the responsibilities, duties and liabilities of
the
Servicer under this Agreement simultaneously with the termination of the
Servicer’s responsibilities, duties and liabilities under this Agreement. Any
successor to the Servicer shall be subject to the approval of the Master
Servicer and the NIMS Insurer. Any approval of a successor servicer by the
Master Servicer and the NIMS Insurer and, to the extent required by the Trust
Agreement, the Trustee, shall, if the successor servicer is not at that time
a
servicer of other Mortgage Loans for the Trust Fund, be conditioned upon
the
receipt by the Master Servicer, the NIMS Insurer, the Seller and the Trustee
of
a letter from each Rating Agency to the effect that such transfer of servicing
will not result in a qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates or the NIM Securities to be issued in the
NIMS
Transaction. In connection with such appointment and assumption, the Master
Servicer or the Seller, as applicable, may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and
such
successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer under
this
Agreement. In the event that the Servicer’s duties, responsibilities and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of
such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and
shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this Section 9.01 and shall in no event relieve
the Servicer of the representations and warranties made pursuant to Sections
6.01 and the remedies available to the Master Servicer, the Trustee, the
NIMS
Insurer and the Seller under Sections 6.02, 6.03 and 6.04, it being understood
and agreed that the provisions of such Sections 6.01, 6.02, 6.03 and 6.04
shall
be applicable to the Servicer notwithstanding any such resignation or
termination of the Servicer, or the termination of this Agreement. Neither
the
Master Servicer, in its capacity as successor servicer, nor any other successor
servicer shall be responsible for the lack of information and/or documents
that
it cannot otherwise obtain through reasonable efforts.
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Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer of
any
Mortgage Notes and the related documents. The Servicer shall cooperate with
the
Trustee, the Master Servicer or the Seller, as applicable, and such successor
in
effecting the termination of the Servicer’s responsibilities and rights
hereunder and the transfer of servicing responsibilities to the successor
Servicer, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Servicer, the Master Servicer, the NIMS Insurer and the
Seller
an instrument (i) accepting such appointment, wherein the successor shall
make
the representations and warranties set forth in Section 6.01 and provide
for the
same remedies set forth in Sections 6.02, 6.03 and 6.04 herein and (ii) an
assumption of the due and punctual performance and observance of each covenant
and condition to be performed and observed by the Servicer under this Agreement,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 6.02, 7.03, 8.01, 8.02, 8.03 or 8.04 shall not affect any claims
that
the Seller, the Master Servicer, the NIMS Insurer or the Trustee may have
against the Servicer arising out of the Servicer’s actions or failure to act
prior to any such termination or resignation. In addition, in the event any
successor servicer is appointed pursuant to Section 8.02(a)(iii) of this
Agreement, such successor servicer must satisfy the conditions relating to
the
transfer of servicing set forth in the Trust Agreement.
The
Servicer shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Loan documents and
related
documents and statements held by it hereunder and the Servicer shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest
in the
successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Servicer.
Upon
a
successor’s acceptance of appointment as such, it shall notify the Trustee, the
Seller and Master Servicer, the NIMS Insurer and the Depositor of such
appointment in accordance with the procedures set forth in Section
9.04.
-
55 -
Section
9.02. Costs.
The
Seller shall pay the legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be
paid
by (i) the terminated or resigning servicer if such termination or resignation
is a result of an occurrence of a termination event under Section 8.01 or
a
Trigger Event under Section 8.03, (ii) the related Seller if such termination
is
pursuant to Section 8.02(a)(iii) and (iii) in all other cases by the Trust
Fund.
Subject to Section 2.02, the Seller, on behalf of the Depositor, shall pay
the
costs associated with the preparation, delivery and recording of Assignments
of
Mortgages.
Section
9.03. Protection
of Confidential Information.
The
Servicer shall keep confidential and shall not divulge to any party, without
the
Seller’s prior written consent, any nonpublic information pertaining to the
Mortgage Loans or any borrower thereunder, except to the extent that it is
appropriate for the Servicer to do so in working with legal counsel, auditors,
taxing authorities or other governmental agencies.
Section
9.04. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by overnight courier, addressed
as
follows (or such other address as may hereafter be furnished to the other
party
by like notice):
|
(i)
|
if
to the Seller:
|
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Manager, Contract Finance, FFMLT 2006-FF12
|
(ii)
|
if
to the Servicer:
|
National
City Home Loan Services, Inc.
Attention:
Investor Reporting Manager
000
Xxxxxxxxx Xxxxxx
Xxxxxxx
00-00-000
Xxxxxxxxxx,
XX 00000
|
(iii)
|
if
to the Master Servicer:
|
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
E. Xxxx Xxxxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
-
56 -
|
(iv)
|
if
to the Trustee:
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxxxx
|
(v)
|
if
to the NIMS Insurer:
|
|
as
provided in the Trust Agreement.
|
Any
such
demand, notice or communication hereunder shall be deemed to have been received
on the date delivered to or received at the premises of the addressee.
Section
9.05. Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section
9.06. No
Personal Solicitation.
From
and
after the Closing Date, the Servicer hereby agrees that it will not take
any
action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Servicer’s behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
related Mortgage Loan for any purpose whatsoever, including to refinance
a
Mortgage Loan, in whole or in part, without the prior written consent of
the
Trustee. It is understood and agreed that all rights and benefits relating
to
the solicitation of any Mortgagors and the attendant rights, title and interest
in and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Trustee pursuant
hereto on the Closing Date and the Servicer shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood
and
agreed that promotions undertaken by the Servicer or any affiliate of the
Servicer which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 9.06.
-
57 -
Section
9.07. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts
shall
constitute one and the same instrument.
Section
9.08. Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Seller in the State of New York and shall be deemed to have
been
made in the State of New York. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
9.09. Further
Agreements.
The
Seller and the Servicer each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section
9.10. Intention
of the Parties.
It
is the
intention of the parties that the Seller is conveying, and the Servicer is
receiving only a contract for servicing the Mortgage Loans. Accordingly,
the
parties hereby acknowledge that the Trust Fund remains the sole and absolute
owner of the Mortgage Loans (other than the servicing rights) and all rights
related thereto.
Section
9.11. Successors
and Assigns; Assignment of Servicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Servicer, the Seller, the NIMS Insurer and the Master Servicer and their
respective successors and assigns. This Agreement shall not be assigned,
pledged
or hypothecated by the Servicer to a third party except in accordance with
Section 7.03 and shall not be assigned, pledged or hypothecated by the Seller
without the prior written consent of the NIMS Insurer except as to the extent
provided in Section 9.12.
-
58 -
Section
9.12. Assignment
by the Seller.
The
Seller shall assign (exclusive of the Seller’s rights arising under Section
8.02(a)(iii) and 8.03), its interest under this Agreement to the Depositor,
which in turn shall assign such rights to the Trustee, and the Trustee then
shall succeed to all rights of the Seller under this Agreement.
Section
9.13. Amendment.
This
Agreement may be amended from time to time by the Servicer and the Seller,
with
(i) the prior written consent of the Trustee and the NIMS Insurer and (ii)
the
written agreement signed by the Master Servicer, the Seller and the Servicer;
provided
that the
party requesting such amendment shall, at its own expense, provide the Trustee,
the NIMS Insurer, the Master Servicer and the Seller with an Opinion of Counsel
that such amendment will not materially adversely affect the interest of
the
Certificateholders in the Mortgage Loans or the NIM Securities to be issued
in
the NIMS Transaction. Any such amendment shall be deemed not to adversely
affect
in any material respect any the interest of the Certificateholders in the
Mortgage Loans or the NIM Securities to be issued in the NIMS Transaction,
if
the Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce, qualify or withdraw
the
then current rating assigned to the Certificates and the NIM Securities (and
any
Opinion of Counsel requested by the Trustee, the NIMS Insurer, the Master
Servicer and the Seller in connection with any such amendment may rely expressly
on such confirmation as the basis therefor); provided,
however,
this
Agreement may be amended by the Servicer, the Seller, the Master Servicer
and
the Trustee from time to time without the delivery of an Opinion of Counsel
described above to the extent necessary, in the judgment of the Seller and
its
counsel, to comply with any rules promulgated by the Commission and any
interpretations thereof by the staff of the Commission.
Section
9.14. Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced and is consented to by the NIMS
Insurer.
Section
9.15. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
9.16. Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree
that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trustee and the NIMS Insurer receive the benefit of the
provisions of this Agreement as intended third party beneficiaries of this
Agreement to the extent of such provisions. The Servicer shall have the same
obligations to the Trustee and the NIMS Insurer as if they were parties to
this
Agreement, and the Trustee and the NIMS Insurer shall have the same rights
and
remedies to enforce the provisions of this Agreement as if they were parties
to
this Agreement. The Servicer shall only take direction from the Master Servicer
(if direction by the Master Servicer is required under this Agreement) unless
otherwise directed by this Agreement or the Credit Risk Management Agreement.
Notwithstanding the foregoing, all rights and obligations of the Trustee
and the
Master Servicer hereunder (other than the right to indemnification) shall
terminate upon the termination of the Trust Fund pursuant to the Trust Agreement
and all rights of the NIMS Insurer set forth in this Agreement (other than the
right of indemnification) shall exist only so long as the NIM Securities
issued
pursuant to the NIMS Transaction remain outstanding or the NIMS Insurer is
owed
amounts in respect of its guarantee of payment on such NIM
Securities.
-
59 -
Section
9.17. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles”, “Sections”, “Subsections”, “Paragraphs”, and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein”, “hereof”, “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean by reason of enumeration.
-
60 -
Section
9.18. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
-
61 -
IN
WITNESS WHEREOF, the Servicer, the Seller and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By: /s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized
Signatory
NATIONAL
CITY HOME LOAN SERVICES, INC.,
as
Servicer
By:
/s/
Xxxxxx X. Baronet
Name:
Xxxxxx X. Baronet
Title:
Vice President
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
Acknowledged
by:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “First Franklin Mortgage
Loan Trust 2006-FF12 Mortgage Loan Schedules” at XxXxx Xxxxxx LLP]
A-1
CUSTODIAL
ACCOUNT LETTER AGREEMENT
______________
__, ____
| To: |
________________________
|
|
________________________
|
|
________________________
|
| (the “Depository”) |
As
Servicer under the Securitization Servicing Agreement, dated as of August
1,
2006 (the “Agreement”), we hereby authorize and request you to establish an
account, as a Custodial Account pursuant to Section 3.03 of the Agreement,
to be
designated as “National City Home Loan Services, Inc. in trust for U.S. Bank
National Association, as Trustee for the First Franklin Mortgage Loan Trust,
Series 2006-FF12.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
NATIONAL
CITY HOME LOAN SERVICES,
INC.
|
Servicer
|
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Date:
______________________________
B-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
________________________________________
Depository
By:
______________________________
Name:
____________________________
Title:
_____________________________
Date:
_____________________________
B-2
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
______________
___, ____
| To: |
________________________
|
|
________________________
|
|
________________________
|
| (the “Depository”) |
As
Servicer under the Securitization Servicing Agreement, dated as of August
1,
2006 (the “Agreement”), we hereby authorize and request you to establish an
account, as an Escrow Account pursuant to Section 3.05 of the Agreement,
to be
designated as “National City Home Loan Services, Inc. in trust for U.S. Bank
National Association, as Trustee for the First Franklin Mortgage Loan Trust,
Series 2006-FF12.” All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
NATIONAL
CITY HOME LOAN SERVICES,
INC.
|
Servicer
|
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Date:
______________________________
C-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
________________________________________
Depository
By:
______________________________
Name:
____________________________
Title:
_____________________________
Date:
_____________________________
X-0
XXXXXXX
X-0
FORM
OF
MONTHLY REMITTANCE ADVICE
|
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
|
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED
|
||
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||
|
REQUIRED,
.00 IF NO COLLECTIONS
|
||
|
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
|
.00
IF NOT APPLICABLE
|
||
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MMM-YY
|
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MMM-YY
|
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0700000 for 7.00%
|
||
|
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0025000 for .25%
|
||
|
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
|
Example
.0675000 for 6.75%
|
||
|
PIPMT
|
P&I
CONSTANT, REQUIRED .00 IF PAIDOFF
|
Number
two decimals
|
X-0-0
XXXXXXX
X-0
XXXXXXXX
XXXXXX FOR MONTHLY DEFAULTED LOAN REPORT
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
%
of
MI coverage
|
NUMBER(6,5)
|
|
|
The
percent of coverage provided by the PMI company in the event
of loss on a
defaulted loan.
|
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the claim was submitted to the PMI company.
|
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the bankruptcy petition is filed with the
court.
|
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
|
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that foreclosure counsel filed the first legal action as
defined by
state statute.
|
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure redemption period expires.
|
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset
in an
active bankruptcy case.
|
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
|
|
The
court assigned case number of the bankruptcy filed by a party
with
interest in the property.
|
D-2-1
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
MI
claim amount paid
|
NUMBER(15,2)
|
|
|
The
amount paid to the servicer by the PMI company as a result of
submitting
an MI claim.
|
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from the PMI company as a result
of
transmitting an MI claim.
|
|
Current
loan amount
|
NUMBER(10,2)
|
|
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the foreclosure sale is scheduled to be held.
|
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the dismissal or relief from stay order is entered
by the
bankruptcy court.
|
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of acceptance of an REO offer.
|
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of receipt of an REO offer.
|
|
Delinquency
value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure referral not
related to
loss mitigation activity.
|
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency
valuation
amount.
|
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the delinquency valuation amount was completed by vendor
or property
management company.
|
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent
but is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
|
Foreclosure
flag
|
VARCHAR2(2)
|
Y=Active
foreclosure
|
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in
foreclosure
proceedings.
|
|
Corporate
expense balance
|
NUMBER(10,2)
|
|
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
|
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
D-2-2
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
|
|
Value
obtained during the foreclosure process. Usually as a result
of a BPO and
typically used to calculate the bid.
|
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that foreclosure valuation amount was completed by vendor or
property
management company.
|
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure
valuation
amount.
|
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
|
|
Number
that is assigned individually to the loan by either HUD or VA
at the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure sale was held.
|
|
Servicer
loan number
|
VARCHAR2(15)
|
|
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residentia
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of
certain types
of insurance (i.e.: FHA, VA, conventional insured, conventional
uninsured,
SBA, etc.).
|
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
|
|
The
date determined that the servicer and mortgagor agree to pursue
a defined
loss mitigation alternative.
|
|
Loss
mit flag
|
VARCHAR2(2)
|
Y=
Active loss mitigation
|
N=No
active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in
completing
a loss mitigation alternative.
|
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the mortgagor is denied loss mitigation alternatives
or the date
that the loss mitigation alternative is completed resulting in
a current
or liquidated loan.
|
D-2-3
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss mit
approval
date.
|
|
Loss
mit value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
|
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the loss mitigation valuation amount was completed by vendor
or
property management company.
|
|
MI
certificate number
|
VARCHAR2(15)
|
|
|
A
number that is assigned individually to the loan by the PMI company
at the
time of origination. Similar to the VA LGC/FHA Case Number in
purpose.
|
|
LPMI
Cost
|
NUMBER(7,7)
|
|
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone is
occupying
the property. Typically a result of a routine property
inspection.
|
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the most recent occupancy status was determined. Typically
the
date of the most recent property inspection.
|
|
Original
loan amount
|
NUMBER(10,2)
|
|
|
Amount
of the contractual obligations (i.e.: note and mortgage/deed
of
trust).
|
|
Original
value amount
|
NUMBER(10,2)
|
|
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
|
Origination
date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the contractual obligations (i.e.: note and mortgage/deed
of trust)
of the mortgagor was executed.
|
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
D-2-4
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
|
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management company.
|
|
Property
type
|
VARCHAR2(2)
3=Condo
6=Prefabricated
7=Mobile
home
A=Church
O=Co-op
CT=Condotel
|
1=Single
family
4=Multifamily
B=Commercial
U=Unknown
P=PUD
M=Manufactured
housing
MU=Mixed
use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4 unit,
etc.
|
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
002=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
|
REO
repaired value
|
NUMBER(10,2)
|
|
|
The
projected value of the property that is adjusted from the "as
is" value
assuming necessary repairs have been made to the property as
determined by
the vendor/property management company.
|
|
REO
list price adjustment amount
|
NUMBER(15,2)
|
|
|
The
most recent listing/pricing amount as updated by the servicer
for REO
properties.
|
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
|
|
The
most recent date that the servicer advised the agent to make
an adjustment
to the REO listing price.
|
|
REO
value (as is)
|
NUMBER(10,2)
|
|
|
The
value of the property without making any repairs as determined
by the
vendor/property management company.
|
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the sale of the REO property closed
escrow.
|
D-2-5
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now Real
Estate
Owned.
|
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
|
|
The
initial/first date that the property was listed with an agent
as an
REO.
|
|
REO
original list price
|
NUMBER(15,2)
|
|
|
The
initial/first price that was used to list the property with an
agent as an
REO.
|
|
REO
net sales proceeds
|
NUMBER(10,2)
|
|
|
The
actual REO sales price less closing costs paid. The net sales
proceeds are
identified within the HUD1 settlement statement.
|
|
REO
sales price
|
NUMBER(10,2)
|
|
|
Actual
sales price agreed upon by both the purchaser and servicer as
documented
on the HUD1 settlement statement.
|
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
|
REO
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the vendor or management company completed the valuation
of the
property resulting in the REO value (as is).
|
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value (as
is).
|
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the first scheduled payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and
servicer.
|
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
|
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
|
|
The
servicer defined date upon which the servicer considers that
the plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that both the mortgagor and servicer agree to the terms
of a
forbearance or repayment plan.
|
|
SBO
loan number
|
NUMBER(9)
|
|
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
D-2-6
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
|
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only).
|
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title approval was received as set forth
in the HUD
title approval letter.
|
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title package was submitted to either HUD
or
VA.
|
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that funds were received by the servicer from the
VA for the
expense claim submitted by the servicer.
|
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
|
VA
first funds received amount
|
NUMBER(15,2)
|
|
|
The
amount of funds received by the servicer from VA as a result
of the
specified bid.
|
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the funds from the specified bid were received by the
servicer
from the VA.
|
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
|
Zip
Code
|
VARCHAR2(5)
|
|
|
U.S.
postal zip code that corresponds to property location.
|
|
FNMA
Delinquency status code
|
VARCHAR2(3)
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
09=Forbearance
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer
that reflects
the current defaulted status of a loan (i.e.: 65, 67, 43 or
44).
|
D-2-7
|
Data
Field
|
Format
|
|
|
Data
Description
|
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer
that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
|
Suspense
balance
|
NUMBER(10,2)
|
|
|
Money
submitted to the servicer, credited to the mortgagor's account
but not
allocated to principal, interest, escrow, etc.
|
|
Restricted
escrow balance
|
NUMBER(10,2)
|
|
|
Money
held in escrow by the mortgage company through completion of
repairs to
property.
|
|
Investor
number
|
NUMBER
(10,2)
|
|
|
Unique
number assigned to a group of loans in the servicing system.
|
X-0-0
XXXXXXX
X-0
FORM
OF
LOAN LOSS REPORT
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Servicer
Cut Off Date
|
Reporting
cycle cut off date
|
DATE(MM/DD/YYYY)
|
|
Servicer
Loan Number
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
VARCHAR2(15)
|
|
Investor
Loan Number
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
NUMBER(9)
|
|
Servicer
Customer Number
|
Unique
number assigned to each servicer
|
NUMBER(3)
|
|
Investor
ID
|
Unique
number assigned to a group of loans in the servicing system.
|
NUMBER
(10,2)
|
|
Resolution
Type
|
Description
of the process to resolve the delinquency. Ex. Foreclosure, Short
Sale,
Third Party Sale, Deed In Lieu, etc.
|
VARCHAR2(15)
|
|
Resolution
Date
|
Date
the process described in Resolution Type was completed.
|
DATE(MM/DD/YYYY)
|
|
Liquidation
Date
|
Date
the loan was liquidated on the servicers servicing system.
|
DATE(MM/DD/YYYY)
|
|
REO
Sale Date
|
Actual
date that the sale of the REO property closed escrow.
|
DATE(MM/DD/YYYY)
|
|
Title
Date
|
Date
clear title was recorded.
|
DATE(MM/DD/YYYY)
|
|
MI
Percent
|
Percent
of coverage provided by the PMI company in the event of loss on
a
defaulted loan.
|
NUMBER(6,5)
|
|
First
Legal Date
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
1 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the
bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
|
Bankruptcy
2 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the
bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
D-3-1
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Foreclosure
Fees
|
Amount
paid to the Foreclosure Attorney for performing his
service.
|
NUMBER(10,2)
|
|
Foreclosure
Costs
|
Amount
incurred as part of the foreclosure process.
|
NUMBER(10,2)
|
|
Bankruptcy
Costs
|
Amount
incurred related to a bankruptcy filing involving the borrower
or subject
property.
|
NUMBER(10,2)
|
|
Eviction
Costs
|
Amount
incurred related to the eviction process.
|
NUMBER(10,2)
|
|
Appraisal
Costs
|
Amount
incurred to acquire a value for the subject property.
|
NUMBER(10,2)
|
|
Preservation
Costs
|
Amount
incurred to preserve and secure the property.
|
NUMBER(10,2)
|
|
Utility
Costs
|
Amount
incurred for utilities at the property.
|
NUMBER(10,2)
|
|
HOA
Costs
|
Amount
paid to the Home Owners Association to maintain the property
dues.
|
NUMBER(10,2)
|
|
Other
Costs
|
Amount
of Miscellaneous Expenses incurred during the default
process.
|
NUMBER(10,2)
|
|
Interest
on Advances
|
Interest
paid by HUD/VA or MI on the amounts advanced related to the liquidation
of
the property.
|
NUMBER(10,2)
|
|
Hazard
Refunds
|
Amount
of refunds of Hazard Premiums paid.
|
NUMBER(10,2)
|
|
Real
Estate Taxes
|
Amount
of any taxes paid during the default process.
|
NUMBER(10,2)
|
|
Hazard
Premiums
|
Amount
paid for Hazard Insurance on the property held as collateral for
the
mortgage.
|
NUMBER(10,2)
|
|
MI
Premiums
|
Amount
paid for Mortgage Insurance related to the mortgage loan.
|
NUMBER(10,2)
|
|
Other
Escrow
|
Miscellaneous
Expenses incurred from the escrow account during the default
process.
|
NUMBER(10,2)
|
|
Sales
Proceeds
|
Funds
received in connection with the sale of the property held as collateral
for the mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Initial
Claim Proceeds
|
Funds
received in connection with the conveyance of the property to the
insuring
agency (Positive Number).
|
NUMBER(10,2)
|
|
Final
Claim Proceeds
|
Claim
funds received from the insuring agency (HUD/VA).
|
NUMBER(10,2)
|
D-3-2
|
Final
Report Field Heading
|
Definition
|
Format
|
|
Other
Proceeds
|
Miscellaneous
funds received in connection with the property held as collateral
for the
mortgage loan (Positive Number).
|
NUMBER(10,2)
|
|
Escrow
Balance
|
Any
positive balance remaining in the escrow account.
|
NUMBER(10,2)
|
|
Replacement
Reserve Bal
|
Amount
of funds held in the Replacement Reserve account (Positive
Number).
|
NUMBER(10,2)
|
|
Restricted
Escrow Bal
|
Amount
of funds held in the Restricted Escrow account.
|
NUMBER(10,2)
|
|
Suspense
Balance
|
Amount
of funds held in the Suspense account (Positive Number).
|
NUMBER(10,2)
|
|
Servicer
Retained Loss
|
The
total amount of the Gross Final Actual (Loss)/Gain the servicer
will take,
due to Interest/Expense Curtailments by HUD/VA (This would include
Advances not claimed to HUD/VA or MI due to servicer error) (Positive
Number).
|
NUMBER(10,2)
|
D-3-3
EXHIBIT
E
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Securitization Servicing Agreement dated as of August 1, 2006 (the
“Agreement”), by and among National City Home Loan Services, Inc. (the
“Servicer”), Xxxxxx Brothers Holdings Inc., as seller (the “Seller”),
Aurora Loan Services LLC, as master servicer (the “Master Servicer”), and
acknowledged by U.S. Bank National Association, as Trustee (the
“Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Trustee, the Master Servicer and Structured Asset Securities Corporation
(the “Depositor”), and their officers, with the knowledge and intent that they
will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934,
as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor,
the
Master Servicer and the Trustee pursuant to the Agreement (collectively,
the
“Company Servicing Information”);
(2) Based
on
my knowledge, the Company 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 Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor, the
Master Servicer and the Trustee;
(4) Based
on
my knowledge and the compliance review conducted in preparing the Compliance
Statement and except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Servicer has fulfilled its obligations
under the Agreement in all material respects; and
E-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Depositor, the Master Servicer and the
Trustee. Any material instances of noncompliance described in such reports
have
been disclosed to the Depositor, the Master Servicer and the Trustee. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________
NATIONAL
CITY HOME LOAN SERVICES, INC.
By:
___________________________
Name:
Title:
X-0
XXXXXXX
X
XXXXX
0000-XX00 TRUST AGREEMENT
F-1
EXHIBIT
G
XXXXXX
XXX GUIDE NO. 95-19
Reference
o Selling: This
announcement amends the guide(s) indicated.
q Servicing: Please
keep it for reference until we issue a formal change.
| Subject |
“Full-File”
Reporting to Credit Repositories
|
Part
IV,
Section 107, of the servicing Guide currently requires servicers to report
only
90-day delinquencies to the four major credit repositories. To ensure that
the
repositories have up-to-date information for both servicing and origination
activity, we have decided to begin requiring -- as of the month ending March
31,
1996 -- servicers to provide the credit repositories a “full-file” status report
for the mortgages they service for us.
“Full-file”
reporting requires that servicers submit a monthly report to each of the
credit
repositories to describe the exact status for each mortgage they service
for us.
The status reported generally should be the one in effect as of the last
business day of each month. Servicers may, however, use a slightly later
cut-off
date -- for example, at the and of the first week of a month -- to assure
that
payment corrections, returned checks, and other adjustments related to the
previous month’s activity can be appropriately reflected in their report for
that month. Statuses that must be reported for any given mortgage include
the
following: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, and charged-off. (The credit repositories will provide the
applicable codes for reporting these statuses to them.) A listing of each
of the
major repositories to which “full-file” status reports must be sent is
attached.
Servicers
are responsible for the complete and accurate reporting of mortgage status
information to the repositories and for resolving any disputes that arise
about
the information they report. Servicers must respond promptly to any inquiries
from borrowers regarding specific mortgage status information about them
that
was reported to the credit repositories.
Servicers
should contact their Customer Account Team in their lead Xxxxxx Mae regional
office if they have any questions about this expanded reporting
requirement.
Xxxxxx
X.
Engeletad
Senior
Vice President - Mortgage and Lender Standards
11/20/95
G-1
XXXXXX
MAE GUIDE 95-19
ATTACHMENT
1
ANNOUNCEMENT
Major
Credit Repositories
A
“full-file” status report for each mortgage serviced for Xxxxxx Xxx must be sent
to the following repositories each month (beginning with the month ending
March
31, 1996):
|
Company
|
Telephone
Number
|
|
Consumer
Credit Associates, Inc
000
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000-0000.
|
Call
(000) 000-0000, either extension 150, 101, or 112, for all
inquiries.
|
|
Equifax
|
Members
that have an account number may call their local sales representative
for
all inquiries; lenders that need to set up an account should
call (000)
000-0000 and select the customer assistance option.
|
|
TRW
Information Systems & Services
000
XXX Xxxxxxx
Xxxxx,
Xxxxx 00000
|
Call
(000) 000-0000 for all inquiries, current members should select
option 3;
lenders that need to set up an account should select Option
4.
|
|
Trans
Union Corporation
000
Xxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
Call
(000) 000-0000 to get the name of the local bureau to contact
about
setting up an account or obtaining other
information.
|
11/20/95
G-2
EXHIBIT
H
[RESERVED]
H-1
EXHIBIT
I
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”, as identified by a xxxx in the column titled
“Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
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 mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
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 overcollateralization, 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
|
I-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
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 mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan 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 mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
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 mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
I-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
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.
|
|
|
|
|
|
I-3
EXHIBIT
J
TRANSACTION
PARTIES
|
Trustee:
|
U.S.
Bank National Association
|
|
Master
Servicer:
|
Aurora
Loan Services LLC
|
|
Credit
Risk Manager:
|
Office
Tiger Global Real Estate Services Inc.
|
|
Interest
Rate Swap Counterparty:
|
Wachovia
Bank, National Association
|
|
Interest
Rate Cap Counterparty:
|
Wachovia
Bank, National Association
|
|
Servicer(s):
|
National
City Home Loan Services, Inc.
|
|
Mortgage
Loan Seller:
|
First
Franklin Financial Corporation
|
|
Originator(s):
|
First
Franklin, a division of National City Bank
|
|
Custodian(s):
|
U.S
Bank National Association
|
|
Seller:
|
Xxxxxx
Brothers Holdings Inc.
|
J-1
EXHIBIT
K
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
(FFMLT
2006-FF12)
|
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.05 of that certain
securitization servicing agreement, dated as of August 1, 2006
(the
“Agreement”), by and among Xxxxxx Brothers Holdings Inc., National City
Home Loan Services, Inc., as servicer (the “Servicer”) and Aurora Loan
Services LLC, as master servicer, and acknowledged by U.S. Bank
National
Association, as Trustee, relating to the issuance of the First
Franklin
Mortgage Loan Trust Mortgage Pass-Through Certificates, Series
2006-FF12
|
[_______],
the undersigned, a duly authorized [_______] of [the Servicer][Name of
Subservicer], does hereby certify the following for the [calendar year][identify
other period] ending on December 31, 20[__]:
|
1.
|
A
review of the activities of the Servicer during the preceding calendar
year (or portion thereof) and of its performance under the Agreement
for
such period has been made under my
supervision.
|
|
2.
|
To
the best of my knowledge, based on such review, the Servicer has
fulfilled
all of its obligations under the Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there
has
been a failure to fulfill any such obligation in any material respect,
I
have specifically identified to the Master Servicer, the Depositor
and the
Trustee each such failure known to me and the nature and status
thereof,
including the steps being taken by the Servicer to remedy such
default.
|
Certified
By:
______________________________
Name:
Title:
K-1
