EXHIBIT 99.3
RECONSTITUTED SERVICING AGREEMENT
LUMINENT MORTGAGE TRUST 2006-6
This Reconstituted Servicing Agreement, dated as of September 28, 2006
(this "AGREEMENT"), is by and among RESIDENTIAL FUNDING CORPORATION ("RFC"),
XXXXX ASSET SECURITIZATION, INC. (the "DEPOSITOR"), MAIA MORTGAGE FINANCE
STATUTORY TRUST (the "SELLER") and XXXXX FARGO BANK, N.A., as master servicer
and securities administrator (in each such capacity, the "MASTER SERVICER" and
the "SECURITIES ADMINISTRATOR", respectively), and is acknowledged by HSBC BANK
USA, NATIONAL ASSOCIATION, as trustee (the "TRUSTEE").
RECITALS
WHEREAS, the Seller has conveyed the mortgage loans listed on Exhibit One
attached hereto (the "SERVICED LOANS") to the Depositor, and the Depositor has
conveyed the Serviced Loans to the Trustee pursuant to a certain pooling
agreement dated as of September 1, 2006 (the "POOLING AGREEMENT"), by and among
the Seller, the Depositor, the Master Servicer, the Securities Administrator and
the Trustee;
WHEREAS, the Serviced Loans were acquired from RFC by the Seller pursuant
to (i) a certain standard terms and provisions of sale and servicing agreement,
dated as of March 30, 2006 (the "STANDARD TERMS") by and among RFC, Luminent
Mortgage Capital, Inc., Mercury Mortgage Finance Statutory Trust and the Seller
and (ii) certain reference agreements dated as of July 28, 2006 and August 30,
2006, (the reference agreements, together with the Standard Terms, the
"SERVICING AGREEMENT") by and between RFC and the Seller (a copy of such
Servicing Agreement is attached hereto on Exhibit Four);
WHEREAS, the Serviced Loans are currently being serviced by RFC for the
Seller pursuant to the Servicing Agreement, and the Depositor desires that RFC
continue to service the Serviced Loans and RFC has agreed to do so, subject to
the rights of the Master Servicer to terminate the rights and obligations of RFC
hereunder as set forth herein and to the other conditions set forth herein;
WHEREAS, the Seller and RFC agree that (a) the transfer of the Serviced
Loans from Seller to the Depositor and from the Depositor to the Trustee, to be
accomplished by Pooling Agreement, constitutes a Securitization Transaction and
(b) this Agreement shall constitute a "RECONSTITUTION AGREEMENT" (as such term
is defined in the Servicing Agreement) in connection with such Securitization
Transaction that shall govern the Serviced Loans for so long as such Serviced
Loans remain subject to the provisions of the Pooling Agreement;
WHEREAS, the Master Servicer and any successor master servicer shall be
obligated, among other things, to supervise the servicing of the Serviced Loans
on behalf of the Trustee and the Trust Fund, and shall have the right to
terminate the rights and
obligations of RFC upon the occurrence and continuance of an Event of Default
under this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not defined in this Agreement (including Exhibit
Two attached hereto) or in the Servicing Agreement shall have the meanings
ascribed to them in the Pooling Agreement.
ARTICLE II
SERVICING
RFC agrees, with respect to the servicing of the Serviced Loans, to perform
and observe the duties, responsibilities and obligations that are to be
performed and observed by RFC under the provisions of the Servicing Agreement,
except as otherwise provided herein and on Exhibit Two hereto, and that the
provisions of the Servicing Agreement, as so modified, are and shall be a part
of this Agreement to the same extent as if set forth herein in full.
ARTICLE III
TRUST CUT-OFF DATE
The parties hereto acknowledge that by operation of Section 4.01 of the
Servicing Agreement (as modified by this Agreement) the remittance on October
18, 2006 to be made to the Trust Fund is to include all principal collections
due after September 1, 2006 (the "TRUST CUT-OFF DATE"), plus interest thereon at
the weighted average Mortgage Interest Rate collected during the Due Period
immediately preceding October 18, 2006, but exclusive of any portion thereof
allocable to a period prior to the Trust Cut-off Date, and taking into account
the adjustments specified in the definition of "Remittance Amount" set forth in
Section 1.01 of the Servicing Agreement.
ARTICLE IV
SERVICING FEE
Notwithstanding any provision of the Servicing Agreement to the contrary,
the Servicing Fee rate for the Serviced Loans shall be equal to 0.425% per annum
(the "SERVICING FEE RATE"). The Servicing Fee shall be payable monthly from the
interest portion of the related Monthly Payment collected by the Servicer.
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ARTICLE V
RECOGNITION OF THE MASTER SERVICER AND THE TRUST FUND
From and after the date hereof, RFC, and any successor servicer hereunder,
shall be subject to the supervision of the Master Servicer, which Master
Servicer shall be obligated to enforce RFC's obligation to service the Serviced
Loans in accordance with the provisions of this Agreement. RFC shall recognize
the Luminent Mortgage Trust 2006-6 Trust Fund (the "TRUST FUND") as the owner of
the Serviced Loans, and RFC will service the Serviced Loans for the Trust Fund
as if the Trust Fund and RFC had entered into a separate servicing agreement for
the servicing of the Serviced Loans in the form of the Servicing Agreement.
Pursuant to the Pooling Agreement, the Master Servicer and the Trustee shall
have the same rights (but not the obligations, except to the extent expressly
set forth in the Pooling Agreement) as the Owner under the Servicing Agreement
to enforce the obligations of RFC, including, without limitation, the
enforcement of (i) the document delivery requirements set forth in Section 2.01
of the Servicing Agreement and (ii) remedies with respect to representations and
warranties made by RFC in the Servicing Agreement, and shall be entitled to
enforce all of the obligations of RFC thereunder insofar as they relate to the
Serviced Loans. RFC shall look solely to the Trust Fund for performance of any
obligations of the Owner under the Servicing Agreement and the Trust Fund hereby
assumes such obligations. All references to the Owner under the Servicing
Agreement insofar as they relate to the Serviced Loans, shall be deemed to refer
to the Trust Fund. RFC shall not amend or agree to amend, modify, waive, or
otherwise alter any of the terms or provisions of the Servicing Agreement which
amendment, modification, waiver or other alteration would in any way (i)
materially affect the Serviced Loans or RFC's performance under the Servicing
Agreement with respect to the Serviced Loans without the prior written consent
of the Trustee and the Master Servicer or (ii) materially and adversely affect
the interests of the Certificateholders in the Serviced Loans.
The Master Servicer shall be entitled to terminate the rights and
obligations of RFC under this Agreement, as provided in Section 6.01 (Events of
Default of the Company) of the Servicing Agreement. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer be required to
assume any of the obligations of the Owner under the Servicing Agreement; and in
entering into this Agreement, in connection with the performance by the Master
Servicer of any duties it may have hereunder, and in the exercise by the Master
Servicer of its rights the parties and other signatories hereto, except RFC,
agree that the Master Servicer shall be entitled to all of the rights,
protections and limitations of liability, immunities and indemnities afforded to
the Master Servicer under the Pooling and Servicing Agreement. Without
limitation of the foregoing, any provision of the Servicing Agreement requiring
the Seller or the Trust Fund, as "Owner" under the Servicing Agreement, to
reimburse RFC for any costs or expenses shall be satisfied by RFC's
reimbursement of such costs or expenses from the Custodial Account.
A copy of all assessments, attestations, reports and certifications
required to be delivered by RFC under this Agreement and the Servicing Agreement
shall be delivered
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to the Master Servicer by the date(s) specified herein or therein, and where
such documents are required to be addressed to any party, such addressees shall
include the Master Servicer and the Master Servicer shall be entitled to rely on
such documents.
ARTICLE VI
WARRANTIES
The Seller and RFC mutually warrant and represent that, with respect to the
Serviced Loans, the Servicing Agreement is in full force and effect as of the
date hereof and has not been amended or modified in any way with respect to the
Serviced Loans, except as set forth herein, and no notice of termination has
been given thereunder.
ARTICLE VII
REPRESENTATIONS
RFC hereby represents and warrants, for the benefit of the Depositor, the
Trustee and the Trust Fund, that (i) the representations and warranties set
forth on Exhibit Five to this Agreement and in Section 8.02 of the Servicing
Agreement are true and correct as of September 28, 2006 (the "RECONSTITUTION
DATE"), as if such representations and warranties were made on such date and
(ii) the representations and warranties set forth in Section 2.04 of the
Servicing Agreement are true and correct as of the related Closing Date (as
defined in the Servicing Agreement) as if such representations and warranties
were made on such date.
RFC hereby acknowledges and agrees that the remedies available to the Trust
Fund (including the Trustee acting on the Trust Fund's behalf) in connection
with any breach of the representations and warranties made by RFC set forth
above that materially and adversely affects the value of that Mortgage Loan or
the interests of the Owner in such Mortgage Loan shall be as set forth in
Subsection 2.04 of the Servicing Agreement as if they were set forth herein
(including without limitation the repurchase and indemnity obligations set forth
therein). Such enforcement of a right or remedy by the Trustee shall have the
same force and effect as if the right or remedy had been enforced or exercised
by the Trust Fund as Owner under the Servicing Agreement.
Each of the Serviced Loans has been conveyed to the Trustee pursuant to the
Pooling Agreement and Luminent is not the originator of any of the Serviced
Loans.
ARTICLE VIII
ASSIGNMENT
RFC hereby acknowledges that the rights of the Seller as Owner under the
Servicing Agreement, as amended by this Agreement, will be assigned to the
Depositor, and by the Depositor to the Trust Fund, under the Pooling Agreement,
and agree that the Pooling Agreement will be a valid assignment and assumption
agreement or other assignment document and will constitute a valid assignment
and assumption of the rights
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and obligations of the Seller as Owner under the Servicing Agreement to the
Depositor and the Trustee, on behalf of the Trust Fund, as applicable. In
addition, the Trust Fund has made, or intends to make, a REMIC election with
respect to the Serviced Loans. RFC hereby consents to such assignment and
assumption and acknowledges that this agreement constitutes an assignment and
assumption agreement for purposes under Section 2.03 of the Servicing Agreement.
In addition, RFC hereby acknowledges the Trust Fund's REMIC election.
ARTICLE IX
FULL RELEASE
The parties hereto acknowledge and agree that in connection with the
foregoing, the Seller is hereby fully released from all obligations to the
Servicer under the Servicing Agreement with respect to the Serviced Loans. The
Seller will have the continuing right, upon notice, to access the Servicer's
files with respect to the Serviced Loans, including related books and records.
In addition, the Seller will have the continuing right to receive the Servicer's
reports (including the mortgage loan tape) with respect to the Serviced Loans.
ARTICLE X
NOTICES AND REMITTANCES
All notices, consents, certificates, reports and certifications
(collectively, "WRITTEN INFORMATION") required to be delivered to the Owner
under the Servicing Agreement and under this Agreement shall be delivered to the
Master Servicer at the following address:
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Group, Luminent 2006-6
Or, in the case of overnight deliveries:
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 21045)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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All amounts required to be remitted or distributed by the Servicer to the
Owner under the Servicing Agreement and under this Agreement shall be on a
scheduled/scheduled basis and shall be made to the following wire account:
Xxxxx Fargo Bank, N.A.
ABA#: 000-000-000
Account Name: SAS CLEARING
Account Number: 0000000000
For further credit to: Luminent 2006-6, Account #00000000
All Written Information required to be delivered to the Trustee under the
Servicing Agreement and under this Agreement shall be delivered to the Trustee
at the following address:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Trustee/Luminent Mortgage Trust 2006-6
All Written Information required to be delivered to the Depositor under the
Servicing Agreement and under this Agreement shall be delivered to the Depositor
at the following address:
Xxxxx Asset Securitization, Inc.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All Written Information required to be delivered to the Seller under the
Servicing Agreement and under this Agreement shall be delivered to the Seller at
the following address:
Maia Mortgage Finance Statutory Trust
One Commerce Square
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department (Luminent 2006-6)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All demands, notices and communications required to be delivered to RFC
under the Servicing Agreement and this Agreement shall be in writing and shall
be deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, as follows:
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Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Legal Department
with a copy to:
Residential Funding Corporation
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Servicing Manager (Luminent 2006-6)
ARTICLE XI
GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
ARTICLE XII
AMENDMENT
Notwithstanding anything provided herein and on Exhibit Two hereto, the
parties hereto hereby acknowledge and agree that the Servicing Agreement shall
not be amended without the consent of the Seller.
ARTICLE XIII
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all of which
counterparts shall together constitute but one and the same instrument.
ARTICLE XIV
RECONSTITUTION
The Seller and RFC agree that the transfer of the Serviced Loans hereunder
is made pursuant to Section 2.03 of the Servicing Agreement and that September
28, 2006 is the Reconstitution Date related thereto.
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ARTICLE XV
LIMITED ROLE OF THE TRUSTEE
The Trustee shall have no obligations or duties under this Agreement except
as expressly set forth herein. No implied duties on the part of the Trustee
shall be read into this Agreement. Nothing herein shall be construed to be an
assumption by the Trustee of any duties or obligations of any party to this
Agreement or the Servicing Agreement, the duties of the Trustee being solely
those set forth in the Pooling Agreement. The Trustee is entering into this
Agreement solely in its capacity as Trustee under the Agreement and not
individually and there shall be no recourse against the Trustee in its
individual capacity hereunder or for the payment of any obligations of the Trust
or the Trust Fund.
[Remainder of page intentionally blank. Signatures follow.]
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Executed as of the day and year first written above.
RESIDENTIAL FUNDING
CORPORATION, as Servicer
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
MAIA MORTGAGE FINANCE
STATUTORY TRUST, as Seller
By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Trustee & President
XXXXX ASSET SECURITIZATION, INC. as
Depositor
By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Financial Officer
XXXXX FARGO BANK, N.A., as Master
Servicer and Securities Administrator
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
Agreed to and acknowledged by:
HSBC BANK USA, NATIONAL ASSOCIATION
not in its individual capacity, but solely as Trustee
for Luminent Mortgage Trust 2006-6
under the Pooling Agreement
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
EXHIBIT ONE
List Of Serviced Loans
[On file at the Washington DC offices of Hunton & Xxxxxxxx LLP]
Exhibit One-1
EXHIBIT TWO
Modifications to the Servicing Agreement
(a) The definition of "BUSINESS DAY" in Section 1.01 is hereby amended in
its entirety to read as follows:
Business Day: Any day other than a Saturday or Sunday, or a day on which
banks and savings and loan institutions in the State of California, the
State of Maryland, the State of Minnesota or the State of New York are
authorized or obligated by law or executive order to be closed.
(b) A new definition of "ELIGIBLE ACCOUNT" is hereby added to Section 1.01
immediately following the definition of "Due Period" to read as follows:
Eligible Account: Any of
(i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or
trust company that is the principal subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated in
the highest short term rating category of each Rating Agency at the time
any amounts are held on deposit therein;
(ii) an account or accounts the deposits in which are fully insured by
the FDIC (to the limits established by it), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Master Servicer and the Trustee and to each Rating
Agency, the Trustee on behalf of the Certificateholders will have a claim
with respect to the funds in the account or a perfected first priority
security interest against the collateral (which shall be limited to
Permitted Investments) securing those funds that is superior to claims of
any other depositors or creditors of the depository institution with which
such account is maintained;
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution, national banking
association or trust company acting in its fiduciary capacity; or
(iv) an account otherwise acceptable to each Rating Agency without
reduction or withdrawal of its then current ratings of the Certificates as
evidenced by a letter from such Rating Agency to the Master Servicer and
the Trustee. Eligible Accounts may bear interest.
(c) A new definition of "ESCROW ACCOUNT" is hereby added to Section 1.01
immediately following the new definition of "Eligible Account" to read as
follows:
Exhibit Two-1
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.05.
(d) A new definition of "FORTY-YEAR MORTGAGE LOAN" is hereby added to
Section 1.01 immediately following the definition of "Fitch" to read as follows:
Forty-Year Mortgage Loan: Any Mortgage Loan having an original term to
maturity of not more than 40 years.
(e) The definition of "MORTGAGE INTEREST RATE" in Section 1.01 is hereby
amended by adding the phrase "in each case, net of any Relief Act Reduction" to
the end of such definition.
(f) The definition of "OPINION OF COUNSEL" in Section 1.01 is hereby
amended in its entirety to read as follows:
Opinion of Counsel: A written opinion of counsel, who may be an employee of
the Company, that is reasonably acceptable to the Trustee and the Master
Servicer provided that any Opinion of Counsel relating to (a) qualification
of the Mortgage Loans in a REMIC or (b) compliance with the REMIC
Provisions, must be an opinion of counsel reasonably acceptable to the
Trustee, the Master Servicer and the Depositor who (i) is in fact
independent of the Company, (ii) does not have any material direct or
indirect financial interest in the Company or in any affiliate of any such
entity and (iii) is not connected with the Company as an officer, employee,
director or person performing similar functions.
(g) The definition of "PERMITTED INVESTMENTS" in Article I is hereby
amended in its entirety to read as follows:
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the trustee for the benefit of the
certificateholders acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the depositor, the trustee, the
master servicer, the securities administrator or any of their respective
affiliates or for which an affiliate serves as an advisor, will be
considered a permitted investment:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the trustee, the securities
administrator or the master servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, so long as, at the time of
such investment or contractual commitment providing for
Exhibit Two-2
such investment, such depository institution or trust company or its
ultimate parent has a short-term unsecured debt rating in one of the two
highest available rating categories of each Rating Agency rating the
certificates and (B) any other demand or time deposit or deposit account
that is fully insured by the FDIC;
(iii) repurchase obligations with respect to any security described in
clause (i) above and entered into with a depository institution or trust
company (acting as principal) rated A or higher by the Rating Agencies
rating the certificates;
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America, the District of Columbia or any State thereof and that are rated
by each Rating Agency rating the certificates in its highest long-term
unsecured rating categories at the time of such investment or contractual
commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) that is rated by each Rating
Agency rating the certificates in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds (which may be 12b-l funds, as
contemplated by the Commission under the Investment Company Act of 1940)
registered under the Investment Company Act of 1940 including funds managed
or advised by the trustee, the master servicer, the securities
administrator or an affiliate thereof having the highest applicable rating
from each Rating Agency rating such funds; and
(vii) if previously confirmed in writing to the trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each Rating Agency rating the
certificates in writing as a permitted investment of funds backing
securities having ratings equivalent to its highest initial rating of the
senior certificates;
In each case (other than clause (a)), such Permitted Investment shall have
a final maturity (giving effect to any applicable grace period) no later
than the Business Day immediately preceding the Distribution Date (or, if
the Securities Administrator or an Affiliate is the obligor on such
Permitted Investment, the Distribution Date) next following the Due Period
in which the date of investment occurs; provided, that, Permitted
Investments may not include (i) any interest-only security, any security
purchased at a price in excess of 100% of the par value or any security
that provides for payment of both principal and interest with a yield to
maturity in excess of 120% of the yield to maturity at par, (ii) any
floating rate security whose interest rate is inversely or otherwise not
proportionately related to an interest rate index or is calculated as other
than the sum of an interest rate index plus a spread, (iii) securities
subject to an offer, (iv) any security with a
Exhibit Two-3
rating from S&P which includes the subscript "p," "pi," "q," "r" or "t", or
(v) any investment, the income from which is or will be subject to
deduction or withholding for or on account of any withholding or similar
tax.
(h) The definition of "RATING AGENCY" is hereby amended in its entirety to
read as follows:
Rating Agency: Any nationally recognized statistical rating agency rating
the securities issued in a mortgage securitization as a result of a
Securitization Transaction.
(i) The definition of "REMITTANCE DATE" in Section 1.01 is hereby amended
by adding the following words at the beginning of the definition: "No later than
1:00 p.m. Eastern Time on"
(j) The definition of "SERVICING FEE RATE" in Section 1.01 is hereby
amended in its entirety to read as follows:
Servicing Fee Rate: With respect to each Mortgage Loan in the related
Mortgage Loan Schedule that has been provided to the Master Servicer.
(k) Section 1.02 (Calculations Respecting Accrued Interest) is hereby
amended by deleting clause (b) in its entirety.
(l) Section 2.04(lxvi) (Representations and Warranties of the Company) is
hereby amended by replacing the words "30 years" with the words "40 years."
(m) A new Section 2.10 (Credit Reporting) is added to Article II to read as
follows:
Section 2.10. Credit Reporting. The Company will fully furnish in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company, on a monthly basis.
(n) Section 3.01 (Company to Act as Servicer) is hereby amended by adding
the following proviso after the second sentence of the first paragraph to read
as follows:
provided, however, that the Company shall not knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as
the case may be, would cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC or result in the
imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Trustee and the Master Servicer have
Exhibit Two-4
received an Opinion of Counsel (at the expense of the Company reimbursable
from funds in the Custodial Account) to the effect that the contemplated
action will not cause any REMIC created under the Pooling and Servicing
Agreement to fail to qualify as a REMIC or result in the imposition of a
tax upon any such REMIC created thereunder.
(o) Section 3.03 (Collection of Certain Mortgage Loan Payments and
Liquidation Mortgage Loans) is hereby amended by adding a final paragraph to
that section to read as follows:
Notwithstanding anything in this Servicing Agreement to the contrary, for
so long as the Master Servicer has not notified the Servicer that the
Securityholder is no longer entitled to the rights described in Exhibit I,
the Servicer shall follow the procedures set forth in Exhibit I in
connection with any Mortgage Loan that has become 60 or more days
delinquent in payment.
(p) Section 3.05 (Escrow Accounts) is hereby amended as follows:
(i) by adding the following two sentences to the end of such section:
The Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans 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 "Residential Funding
Corporation, in trust for the Trustee of the Luminent Mortgage Trust
2006-6 Trust Fund" and referred to herein as the "Escrow Account." The
Escrow Account shall be an Eligible Account.
(ii) by adding the following sentence at the end of such section:
The Servicer will be obligated to make Servicing Advances to the
Escrow Account in respect of its obligations under this Section 3.05,
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 pursuant to Section
3.10 hereof; provided, however, that Servicing Advances shall not be
required to be made by the Servicer if such Servicing Advance would,
if made, be, in the Servicer's reasonable judgment, nonrecoverable
(q) Section 3.06 (Custodial Account) is hereby amended by replacing the
first two sentences thereof with the following two sentences:
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 "Residential Funding Corporation, in trust for the Trustee of
the Luminent
Exhibit Two-5
Mortgage Trust 2006-6 Trust Fund" and referred to herein as the
"Custodial Account." The Custodial Account shall be an Eligible
Account.
(r) Section 3.07 (Permitted Withdrawals From the Custodial Account) is
amended by adding the following as clause (xi):
(xi) to make payments to the Securityholder in the amounts and in the
manner provided for in Exhibit I.
(s) Section 3.08 (Permitted Instruments) is hereby amended by replacing the
words "Permitted Instrument" and "Permitted Instruments" with the words
"Permitted Investment" and "Permitted Investments" respectively throughout that
section.
(t) Section 4.01 (Distributions) is amended by adding the following
sentence to the end of the section:
With respect to any remittance received by the Owners after the second
Business Day following the Business Day on which such payment was due,
the Servicer shall pay to the Owners 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.
(u) Section 4.02 (Statements to the Owner) is hereby amended in its
entirety to read as follows:
Statements to the Master Servicer. No later than the fifteenth calendar day
of each month (or, if such 15th day is not a Business Day, the immediately
preceding Business Day) the Servicer shall furnish to the Master Servicer
reports in the format set forth in Exhibit J, K and l hereto (or in such
other format that is mutually acceptable to the Servicer and the Master
Servicer).
(v) Section 4.05 (Format of Reports and Statements) and Exhibit G are
deleted in their entirety.
(w) Section 5.04 (Limitations on Resignation and Assignment by Company) is
hereby amended by (i) replacing each reference to "the Owner" in the first two
sentences thereof with "the Depositor, the Trustee, the Master Servicer and each
Rating Agency" and (ii) replacing each other reference to "the Owner" in such
section with "the Master Servicer."
(x) Section 6.01 (Events of Default of the Company) is hereby amended as
follows:
(i) by replacing each reference to "the Owner" with "the Master
Servicer;" and
Exhibit Two-6
(ii) by amending subclause (ii) to add the phrase "(other than in
Article II of Exhibit H" after the words "contained in this Agreement."
(y) Subsection 6.02 (Waiver of Defaults) is hereby amended by replacing the
reference to "Owner" with "Master Servicer."
(z) Section 7.01 (Termination) is hereby amended in its entirety to read as
follows:
Section 7.01. Termination
The respective obligations and responsibilities of the Servicer shall
terminate upon the: (i) the later of the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or the
disposition of all REO Property and the remittance of all funds due
hereunder; (ii) in accordance with Section 6.01 or (iii) in accordance with
Section 5.03.
(aa) A new Section 7.02 (Transfer Costs Upon Termination of the Servicer)
is hereby added as follows:
In connection with the foregoing, the terminated Servicer shall bear all
reasonable out-of-pocket costs of a servicing transfer, including but not
limited to those of the Master Servicer, the Securities Administrator, the
Trustee, legal fees and expenses, accounting and financial consulting fees
and expenses, and costs of amending the Agreement, if necessary.
(bb) Section 8.01 (Successor to the Company) is hereby amended as follows:
(i) by adding the following new sentence immediately after the first
sentence of the first paragraph to read as follows:
Any Successor Servicer shall be a FHLMC- or FNMA-approved servicer and
shall be subject to the approval of each Rating Agency, as evidenced
by a letter from each such Rating Agency delivered to the Trustee and
the Master Servicer that the transfer of servicing will not result in
a qualification, withdrawal or downgrade of the then current rating of
any of the Certificates. In connection with the appointment of a
Successor Servicer, the Owner may make such arrangements for the
compensation of such successor out of payments on the 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.
(ii) by adding the following paragraph to the end of such section:
Except as otherwise provided in this Section 8.01, all reasonable
costs and expenses incurred in connection with any transfer of
servicing hereunder (as a result of the termination or resignation of
the Company as Servicer), including, without limitation, the costs and
expenses of the Master
Exhibit Two-7
Servicer or any other Person in appointing a successor servicer, or of
the Master Servicer in assuming the responsibilities of the Servicer
hereunder, or transferring the Servicing Files and the other necessary
data, including the completion, correction or manipulation of such
servicing data as may be required to correct any errors or
insufficiencies in the servicing data, to the successor servicer shall
be paid by the terminated or resigning Servicer from its own funds
without reimbursement.
(cc) Section 8.02 (Entire Agreement; Amendment) is hereby amended to read
as follows:
SECTION 8.02. Entire Agreement; Amendment. This Agreement may be amended
only by written agreement signed by the Servicer, the Depositor, the Master
Servicer and the Trustee. The party requesting such amendment shall, at its
own expense, provide the Depositor, the Master Servicer and the Trustee
with an Opinion of Counsel that (i) such amendment is permitted under the
terms of this Agreement, (ii) the Servicer has complied with all applicable
requirements of this Agreement, and (iii) such Amendment will not
materially adversely affect the interest of the Certificateholders in the
Serviced Loans. This Agreement shall constitute the entire agreement among
the parties.
(dd) A new Section 8.09 (Intended Third Party Beneficiary) is hereby added
to the Servicing Agreement to read as follows:
SECTION 8.09. 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, the Master Servicer and the Depositor each
receive the benefit of the provisions of this Agreement as an intended
third party beneficiary of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Trustee, the Master
Servicer and the Depositor as if the Trustee, the Master Servicer and the
Depositor were each a party to this Agreement, and the Trustee, the Master
Servicer and the Depositor each shall have the same rights and remedies to
enforce the provisions of this Agreement as if it were a party to this
Agreement. The Servicer shall only take directions from the Master Servicer
(if direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the foregoing,
all rights and obligations of the Trustee, the Master Servicer and the
Depositor hereunder (other than the right to indemnification and the
indemnification obligations, as applicable) shall terminate upon
termination of the Trust Fund pursuant to the Pooling and Servicing
Agreement.
(ee) Exhibit H (Regulation AB Compliance Addendum) is hereby amended as
follows:
Exhibit Two-8
(i) by deleting the words "of at least 10% of the pool assets in a
Securitization Transaction or sub-pool thereof" from the first sentence in
Section 2.03(e);
(ii) by deleting Section 2.03(h) in its entirety;
(iii) by replacing the words "March 15" with the words "March 1" in
Sections 2.04 and 2.05;
(iv) by amending Section 2.07 in its entirety to read as follows:
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
(including, but not limited to, any Master Servicer if applicable)
responsible for the preparation, execution or filing of any report required
to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d)
or Rule l5d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees, agents and affiliates of
each of the foregoing and of the Depositor (each, a "Purchaser Indemnified
Party"), and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or alleged to be
contained in any information, report, certification, data, accountant's
letter or other material provided in written or electronic form under this
Article II by or on behalf of the Company, or provided under this Article
II by or on behalf of any Subservicer or Subcontractor (collectively, the
"Company Information"), or (B) the omission or alleged omission to state in
the Company Information a material fact required to be stated in the
Company Information or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Company Information
and not to any other information communicated in connection with a sale or
purchase of securities, without regard to whether the Company Information
or any portion thereof is presented together with or separately from such
other information;
(ii) any breach by the Company of its obligations under this Article II,
including particularly any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Article II, including any failure by the Company
Exhibit Two-9
to identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set forth
in Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b)
and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Company of a representation or
warranty in a writing furnished pursuant to Section 2.02(b) to the extent
made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the
performance of the Company's duties, or by reason of reckless disregard of
obligations and duties, under this Article II;
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Company agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required under Regulation AB by the Company,
any Subservicer or any Subcontractor.
This indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Article II, or any breach by the
Company of a representation or warranty set forth in Section 2.02(a) or in a
writing furnished pursuant to Section 2.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that such
breach is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section 2.02(b) to
the extent made as of a date subsequent to such closing date, shall immediately
and automatically, without notice or grace period, constitute an Event of
Default with respect to the Company under the Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or any Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Company as servicer under the Agreement and/or any applicable Reconstitution
Agreement without payment
Exhibit Two-10
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Company (and if the
Company is servicing any of the Mortgage Loans in a Securitization Transaction,
appoint a successor servicer reasonably acceptable to any Master Servicer for
such Securitization Transaction); provided that to the extent that any provision
of the Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following termination
of the Company as servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants' letter
when and as required under Section 2.04 or 2.05, including (except as
provided below) any failure by the Company to identify pursuant to Section
2.06(b) any Subcontractor "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, which continues unremedied for
ten calendar days after the date on which such information, report,
certification or accountants' letter was required to be delivered shall
constitute an Event of Default with respect to the Company under this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser, any Master Servicer or any Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement to
the contrary) of any compensation to the Company; provided that to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights or obligations following termination of the Company as servicer,
such provision shall be given effect. Neither the Purchaser, any Master
Servicer nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this subparagraph (b)(ii) if a
failure of the Company to identify a Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this paragraph
shall not limit whatever rights the Purchaser or any Depositor may have
under other provisions of the Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive relief.
(ff) Exhibit I is hereby revised and replaced in its entirety by the
Special Foreclosure Rights provisions set forth on Exhibit Three hereto.
Exhibit Two-11
(gg) New Exhibits J, K and L are hereby added containing the form of
servicing reports set forth on Exhibit Six hereto.
Exhibit Two-12
EXHIBIT THREE
Special Foreclosure Rights Section
For purposes of this Exhibit Five, the term "Securityholder" shall
mean the entity that holds a majority interest in the most subordinated class of
securities issued in the securitization outstanding from time to time.
(a) The Company shall monthly provide a list to the Securityholder and
the Master Servicer of all Mortgage Loans 60 or more days delinquent. With
respect to any Mortgage Loans that are 90 or more days delinquent, the Company
shall provide its proposed resolution of such Mortgage Loan - whether through
foreclosure, deed-in-lieu thereof, modification or forbearance, sale of the
Mortgage Loan or related Mortgaged Property, or otherwise. In conjunction with
such recommendations, the Company shall advise in writing the Securityholder and
the Master Servicer of any bona fide offer to purchase a Mortgage Loan or
related Mortgaged Property.
(b) Prior to taking action with respect to any delinquent Mortgage
Loan that is more than 60 days delinquent, the Company shall notify both the
Master Servicer and the Securityholder of its proposed course of action, but it
shall not take such action unless the Securityholder does not, within a
five-Business Day period, affirmatively object to such action.
(c) If the Securityholder timely and affirmatively objects to an
action or contemplated action of the Company pursuant to section (b) above, then
the Securityholder shall instruct the Master Servicer in writing (with a copy to
the Company) to hire three appraisal firms selected by the Master Servicer in
its reasonable discretion, to compute the fair value of the Mortgaged Property
securing the related Mortgage Loan utilizing the Xxxxxx Xxx Form 2055
Exterior-Only Inspection Residential Appraisal Report (each such appraisal-firm
computation, a "Fair Value Price"), in each case no later than 30 days from the
date of such Securityholder objection. The Company shall be obligated to provide
the Master Servicer with contact information for no less than five local
appraisal firms within three Business Days of receiving the affirmative
objection of the Securityholder. All costs relating to the computation of the
Fair Value Prices shall be for the account of the Securityholder and shall be
paid by the Securityholder at the time that such Mortgage Loan is purchased by
the Securityholder.
(i) If the Master Servicer shall have received three Fair Value
Prices by the expiration of such 30-day period, then the Securityholder
shall, no later than five Business after the expiration of such 30-day
period, purchase such Mortgage Loan for an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan (the "Unpaid
Principal Balance") and (ii) the average of such three Fair Value Prices
respectively determined by such appraisal firms; and shall deliver such
amount to the Company against the assignment of the related Mortgage Loan
and the delivery of the related documents on the purchase date.
Exhibit Three-1
(ii) If the Master Servicer shall not have received three Fair
Value Prices by the end of the 30-day period set forth in paragraph (iii)
above, then:
(1) If the Master Servicer shall have received only two Fair
Value Prices by the end of such 30-day period, then the Master Servicer
shall determine, in its reasonable discretion, the fair value of the
Mortgaged Property and other collateral relating to such Mortgage Loan
(such fair value, the "Master Servicer's Fair Value Price") and the
Securityholder shall, no later than five Business Days after the expiration
of such 30-day period, purchase such Mortgage Loan for an amount equal to
the least of (1) the Unpaid Principal Balance thereof, (2) the average of
such Fair Value Prices determined by such appraisal firms and (3) the
Master Servicer's Fair Value Price; and shall deliver such amount to the
Company against the assignment of the related Mortgage Loan and the
delivery of the related documents on the purchase date.
(2) If the Master Servicer shall have received only one Fair
Value Price by the end of such 30-day period, then the Master Servicer will
determine the Master Servicer Fair Value Price of the Mortgaged Property
related to such Mortgage Loan and the Securityholder shall, no later than
five Business Days after the expiration of such 30-day period, purchase
such Mortgage Loan for an amount equal to the least of (1) the Unpaid
Principal Balance thereof, (2) the Fair Value Price determined by such
appraisal firm and (3) the Master Servicer's Fair Value Price; and shall
deliver such amount to the Company against the assignment of the related
Mortgage Loan and the delivery of the related documents on the purchase
date.
(3) If the Master Servicer shall not have received any such
Fair Value Prices by the end of such 30-days period, then the Master
Servicer will determine the Master Servicer Fair Value Price of the
Mortgaged Property related to such Mortgage Loan and the Securityholder
shall, no later than five Business Days after the expiration of such 30-day
period, purchase such Mortgage Loan for an amount equal to the lesser of
(1) the Unpaid Principal Balance thereof and (2) the Master Servicer's Fair
Value Price; and shall deliver such amount to the Company against the
assignment of the related Mortgage Loan and the delivery of the related
documents on the purchase date.
(4) If the Master Servicer has not received three Fair Value
Prices by the end of such 30-day period, it shall continue for the next 30
days to try to obtain three Fair Value Prices. Upon the earlier of the date
that it obtains the three Fair Value Prices, or the end of the 30-day
extension, the Master Servicer shall recalculate the price payable pursuant
to this Agreement and, within five Business Days thereafter, (i) the
Securityholder shall pay the Company the positive difference between the
recalculated purchase price, and the price actually paid by it, or (ii) the
Company shall refund to the Securityholder the positive difference between
the purchase price actually paid by the Securityholder, and the
recalculated purchase price.
Exhibit Three-2
(d) Notwithstanding anything herein to the contrary, the
Securityholder shall not be entitled to any of its rights set forth herein with
respect to a Mortgage Loan following its failure to purchase such Mortgage Loan
at the purchase price set forth above within the timeframe set forth above
following the Securityholder's objection to an action of the Company, and the
Company shall provide the Master Servicer written notice of such failure.
(e) Any notice, confirmation, instruction or objection pursuant to
paragraphs (a) or (b) above may be delivered via facsimile or other written or
electronic communication as the parties hereto and the Securityholder may agree
to from time to time.
(f) For the avoidance of doubt, the Securityholder's rights set forth
in this Addendum are intended to provide the Securityholder, for so long as it
has not forfeited its right under paragraph (d) hereof as set forth in paragraph
(c) above, with the unilateral right to control foreclosure decisions in respect
of delinquent and defaulted Mortgage Loans, and certain exclusive purchase
rights so as to maximize the recovery value on delinquent and defaulted Mortgage
Loans.
(g) To the extent that the Securityholder purchases any Mortgage Loan
pursuant to this Addendum, the Company will continue to service such Mortgage
Loan in accordance with this Agreement. The parties acknowledge that, in such
event, the Securityholder will have no duty or responsibility to service any
such Mortgage Loan and that the Master Servicer will have no duty or
responsibility to master service any such Mortgage Loan.
(h) In the event that the Securityholder purchases any Mortgage Loan
pursuant to this Addendum, the Company and the Securityholder will work together
in good faith to take any and all actions necessary to effect such purchase,
including, but not limited to, the preparation and execution of any endorsements
or assignments of the Mortgage Loan documents, all at the expense of the
Securityholder.
(i) The Master Servicer shall promptly deliver any written notices
that it receives under this Addendum to the Securityholder.
Exhibit Three-3
EXHIBIT FOUR
Copy of the Servicing Agreement
[See Exhibit 99.4]
Exhibit Four-1
EXHIBIT FIVE
Additional Representations and Warranties of RFC
(a) Attached hereto as Exhibit Three is a true and accurate copy of the
Servicing Agreements, which agreements are in full force and effect as of the
date hereof and the provisions of which have not been waived, amended or
modified in any respect, nor has any notice of termination been given
thereunder;
(b) RFC is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, and RFC has all requisite power
and authority to service the Mortgage Loans and RFC has all requisite power and
authority to perform its obligations under the Servicing Agreement and the
Reference Agreement;
(c) RFC has full corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated by this
Agreement is in the ordinary course of RFC's business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions of
its charter or by-laws or any legal restriction, or any material agreement or
instrument to which it is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree to which RFC
or its respective property is subject. The execution, delivery and performance
by RFC of this Agreement and the consummation by each of them of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of RFC. This Agreement has been duly executed and
delivered by RFC, and, upon the due authorization, execution and delivery by the
other parties to this Agreement, will constitute the valid and legally binding
obligation of RFC, enforceable against RFC in accordance with its terms except
as enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(d) No consent, approval, order or authorization of, or declaration, filing
or registration with, any governmental entity is required to be obtained or made
by RFC in connection with the execution, delivery or performance by RFC of this
Agreement, or the consummation by it of the transactions contemplated hereby;
and
(e) Neither this Agreement nor any certification, statement, report or
other agreement, document or instrument furnished or to be furnished by RFC
pursuant to this Agreement contains or will contain any materially untrue
statement of fact or omits or will omit to state a fact necessary to make the
statements contained therein not misleading.
Exhibit Five-1
EXHIBIT SIX
Exhibit J
Additional Representations and Warranties of RFC
STANDARD FILE LAYOUT - MASTER SERVICING
Column Name Description Decimal Format Comment Max Size
--------------------------- ------------------------------------------- ------- ----------------------------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer to define Text up to 10 digits 20
a group of loans.
LOAN_NBR A unique identifier assigned to each loan Text up to 10 digits 10
by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the
LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. Maximum length of 30 (Last, First) 30
It is not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled 2 No commas(,) or dollar signs ($) 11
interest payment that a borrower is
expected to pay, P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the 4 Max length of 6 6
Servicer.
NET_INT_RATE The loan gross interest rate less the 4 Max length of 6 6
service fee rate as reported by the
Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as 4 Max length of 6 6
reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by 2 No commas(,) or dollar signs ($) 11
the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at 2 No commas(,) or dollar signs ($) 11
the end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle MM/DD/YYYY 10
that the borrower's next payment is due to
the Servicer, as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the MM/DD/YYYY 10
first curtailment amount.
CURT_ADJ_AMT_1 The curtailment interest on the first 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_2 The curtailment date associated with the MM/DD/YYYY 10
second curtailment amount.
CURT_ADJ_AMT_2 The curtailment interest on the second 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
Exhibit Six-1
Column Name Description Decimal Format Comment Max Size
--------------------------- ------------------------------------------- ------- ----------------------------------- --------
SERV_CURT_DATE_3 The curtailment date associated with the MM/DD/YYYY 10
third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third 2 No commas(,) or dollar signs ($) 11
curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported by the MM/DD/YYYY 10
Servicer.
ACTION_CODE The standard FNMA numeric code used to Action Code Key; 15=Bankruptcy, 2
indicate the default/delinquent status of a 30=Foreclosure, 60=PIF,
particular loan. 63=Substitution, 65=Repurchase,
70=REO
INT_ADJ_AMT The amount of the interest adjustment as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, 2 No commas(,) or dollar signs ($) 11
if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a 2 No commas(,) or dollar signs ($) 11
loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount 2 No commas(,) or dollar signs ($) 11
due at the beginning of the cycle date to
be passed through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to 2 No commas(,) or dollar signs ($) 11
investors at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer for the current cycle --
only applicable for Scheduled/Scheduled
Loans.
SCHED_NET_INT The scheduled gross interest amount less 2 No commas(,) or dollar signs ($) 11
the service fee amount for the current
cycle as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by 2 No commas(,) or dollar signs ($) 11
the Servicer for the current reporting
cycle -- only applicable for Actual/Actual
Loans.
ACTL_NET_INT The actual gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current
reporting cycle as reported by the Servicer
-- only applicable for Actual/Actual Loans.
PREPAY_PENALTY_AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the
Servicer.
PREPAY_PENALTY_WAIVED The prepayment penalty amount for the loan 2 No commas(,) or dollar signs ($) 11
waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and 2 No commas(,) or dollar signs ($) 11
interest advances made by Servicer.
Exhibit Six-2
EXHIBIT K: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
Column/Header Name Description Decimal Format Comment
--------------------------- ------------------------------------------- ------- -----------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan
by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST-NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment MM/DD/YYYY
is due to the servicer at the end of
processing cycle, as reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was MM/DD/YYYY
filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was
filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved MM/DD/YYYY
By The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A
Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in MM/DD/YYYY
a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or dollar signs($)
foreclosure sale.
EVICTION_START_DATE The date the servicer initiates eviction of MM/DD/YYYY
the borrower.
Exhibit Six-3
Column/Header Name Description Decimal Format Comment
--------------------------- -------------------------------------------------- ------- ---------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the
property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs 2
are completed pursuant to a broker's price opinion
or appraisal.
If applicable:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why
the loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
Exhibit Six-4
Column/Header Name Description Decimal Format Comment
--------------------------- -------------------------------------------------- ------- ---------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or dollar signs ($)
VA_CLAIM_FILED-DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or dollar signs ($)
Exhibit Six-5
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TVPE field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit Six-6
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA- Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
Exhibit Six-7
EXHIBIT 2: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
Exhibit Six-8
EXHIBIT L : CALCULATION OF REALIZED LOSS/GAIN FORM 332-INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE REPORT
DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL THE FOLLOWING
MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING LOSS APPROVAL
AND/OR RESOLUTION OF ANY DISPUTED ITEMS.
(i)
(ii) The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing fees
advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis. For documentation, an
Amortization Schedule from date of default through liquidation breaking
out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
o For taxes and insurance advances - see page 2 of 332 form - breakdown
required showing period
of coverage, base tax, interest, penalty. Advances prior to default
require evidence of servicer efforts to recover advances.
o For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
o Other expenses - copies of corporate advance history showing all payments
o REO repairs> $1500 require explanation
o REO repairs >$3000 require evidence of at least 2 bids.
o Short Sale or Charge Off require P&L supporting the decision and WFB's
approved Officer Certificate
o Unusual or extraordinary items may require further documentation.
Exhibit Six-9
13. The total of lines 1 through 12.
(iii) CREDITS:
14-21. Complete as applicable. Required documentation:
o Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions
and Escrow Agent / Attorney
o Letter of Proceeds Breakdown.
o Copy of EOB for any MI or gov't guarantee
o All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized show the amount in parenthesis ( ).
Exhibit Six-10
EXHIBIT 3A: CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: ___________ Date: ____________
Phone: _________________ Email Address: __________________
Servicer Loan No. Servicer Name Servicer Address
_________________________ _________________________ _________________________
XXXXX FARGO BANK, N.A. LOAN NO. ____________________________
Borrower's Name: ___________________________________________
Property Address: __________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cram down amount ____________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $________ (1)
(2) Interest accrued at Net Rate _________ (2)
(3) Accrued Servicing Fees _________ (3)
(4) Attorney's Fees _________ (4)
(5) Taxes (see page 2) _________ (5)
(6) Property Maintenance _________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) _________ (7)
(8) Utility Expenses _________ (8)
(9) Appraisal/BPO _________ (9)
(10) Property Inspections _________ (10)
(11) FC Costs/Other Legal Expenses _________ (11)
(12) Other (itemize) _________ (12)
Cash for Keys _________ (12)
HOA/Condo Fees _________ (12)
__________________ _________ (12)
TOTAL EXPENSES $________ (13)
CREDITS:
(14) Escrow Balance $________ (14)
(15) HIP Refund _________ (15)
(16) Rental Receipts _________ (16)
(17) Hazard Loss Proceeds _________ (17)
Exhibit Six-11
(18) Primary Mortgage Insurance/Gov't Insurance HUD Part A _________ (18a)
HUD Part B _________ (18b)
(19) Pool Insurance Proceeds _________ (19)
(20) Proceeds from Sale of Acquired Property _________ (20)
(21) Other (itemize) _________ (21)
__________________ _________
TOTAL CREDITS $________ (22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $________ (23)
Exhibit Six-12
ESCROW DISBURSEMENT DETAIL
TYPE PERIOD OF BASE
(TAX/INS.) DATE PAID COVERAGE TOTAL PAID AMOUNT PENALTIES INTEREST
---------- --------- --------- ---------- ------ --------- --------
Exhibit Six-13
