ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Assignment and Assumption Agreement”),
dated March 30, 2007, among EMC Mortgage Corporation, a Delaware corporation
(the “Assignor”), U.S. Bank National Association, not individually but solely as
trustee for the holders of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1 (the “Assignee”) and Chevy Chase Bank, F.S.B. (the
“Company”).
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. Defined
terms used in this Assignment and Assumption Agreement and not otherwise defined
herein shall have the meaning set forth in the Pooling and Servicing Agreement,
dated as of March 1, 2007, among Structured Asset Mortgage
Investments II Inc. (“XXXX XX”), the Assignor and the Assignee.
2. The
Assignor hereby grants, transfers and assigns to the Assignee all of the right,
title and interest of the Assignor, as purchaser, in, to and under (a) those
certain Mortgage Loans listed on Exhibit A attached hereto (the “Mortgage
Loans”), (b) that certain Purchase, Warranties and Servicing Agreement, dated as
of July 1, 2001, as amended by Amendment No. 1, dated as of January 13, 2003,
and Amendment No. 2, dated as of January 31, 2006, by and between the Assignor
and the Company with respect to the Mortgage Loans (as amended, the “PWS
Agreement”) and (c) that certain term sheet dated as of October 24,
2006 (the “Term Sheet”), by and between the Assignor and the Company.
Notwithstanding anything to the contrary contained herein, the Assignor
specifically reserves and does not assign to the Assignee any right, title
and
interest in, to or under the representations and warranties contained in Section
3.01 and Section 3.02 of the PWS Agreement and in the Term Sheet, and any
obligation of the Company to cure, repurchase or substitute for a mortgage
loan
and to indemnify the Assignor with respect to a breach of such representations
and warranties pursuant to Section 3.03 and Section 8.01 of the PWS Agreement,
and the Assignor is retaining the right to enforce the representations and
warranties set forth in those sections against the Company. In
addition, the Assignor specifically reserves and does not assign to the Assignee
any right, title and interest in, to or under Section 4.03 and Section 4.13
of
the PWS Agreement (but only insofar as such Sections grant to the Purchaser
the
right to terminate the servicing of defaulted Assigned Loans and/or REO
Properties by the Company).
The
Assignor specifically reserves and
does not assign to the Assignee hereunder any and all right, title and interest
in, to and under and all obligations of the Assignor with respect to any
mortgage loans subject to the PWS Agreement and the Term Sheet which are not
the
Mortgage Loans set forth on Exhibit A attached hereto and are not the subject
of
this Assignment and Assumption Agreement.
3. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to the
PWS
Agreement, the Term Sheet or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the PWS Agreement, the Term Sheet or the
Mortgage Loans, including without limitation the transfer of the servicing
obligations under the PWS Agreement. The Assignor has no knowledge of, and
has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under or defaults under, the PWS
Agreement, the Term Sheet or the Mortgage Loans; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
by
general solicitation, by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “1933 Act”) or which would render
the disposition of the Mortgage Loans a violation of Section 5 of the 1933
Act
or require registration pursuant thereto.
4. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Company that:
a. The
Assignee is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its organization, and has all requisite power and
authority to hold the Mortgage Loans on behalf of the holders of the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1;
b. The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment and Assumption Agreement, and to consummate the
transactions set forth herein. The execution, delivery and performance of the
Assignee of this Assignment and Assumption Agreement, and the consummation
by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Assignee. This Assignment and
Assumption Agreement has been duly executed and delivered by the Assignee and
constitutes the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its respective terms;
c. To
the
best of the Assignee’s knowledge, no material consent, approval, order or
authorization of, or declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Assignee in connection with
the
execution, delivery or performance by the Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions contemplated
hereby;
d. The
Assignee assumes all of the rights of the Purchaser under the PWS Agreement
with
respect to the Mortgage Loans other than the right to enforce the obligations
of
the Company under the PWS Agreement.
5. The
Company warrants and represents to, and covenants with, the Assignor and the
Assignee as of the date hereof:
a. Attached
hereto as Exhibit B are true and accurate copies of the PWS Agreement and the
relevant Term Sheet, 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. The
Company is a federally chartered savings bank duly organized, validly existing
and in good standing under the laws of the United States, and has all requisite
power and authority to service the Mortgage Loans and otherwise to perform
its
obligations under the PWS Agreement and the Term Sheet;
c. The
Company has full corporate power and authority to execute, deliver and perform
its obligations under this Assignment and Assumption Agreement, and to
consummate the transactions set forth herein. The consummation of the
transactions contemplated by this Assignment and Assumption Agreement is in
the
ordinary course of the Company’s business and will not conflict with, or result
in a breach of, any of the terms, conditions or provisions of the Company’s
charter or by-laws or any legal restriction, or any material agreement or
instrument to which the Company 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 the Company or its property is subject. The execution, delivery and
performance by the Company of this Assignment and Assumption Agreement and
the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on part of the Company. This Assignment
and
Assumption Agreement has been duly executed and delivered by the Company, and,
upon the due authorization, execution and delivery by the Assignor and the
Assignee, will constitute the valid and legally binding obligation of the
Company, enforceable against the Company 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
the Company in connection with the execution, delivery or performance by the
Company of this Assignment and Assumption Agreement, or the consummation by
it
of the transactions contemplated hereby; and
e. The
Company shall establish a Custodial Account and an Escrow Account under the
PWS
Agreement in favor of the Assignee with respect to the Mortgage Loans separate
from the Custodial Account and Escrow Account previously established under
the
PWS Agreement in favor of the Assignor.
6. The
Company warrants and represents to, and covenants with, the Assignor and XXXX
XX
as of the date hereof:
a. The
Company 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 Company;
b. No
material noncompliance with the applicable servicing criteria with respect
to
other securitizations of residential mortgage loans involving the Company as
servicer has been disclosed or reported by the Company;
c. The
Company 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;
d. No
material changes to the Company’s policies or procedures with respect to the
servicing function it will perform under the PWS Agreement and this Assignment
and Assumption Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
date
hereof;
e. There
are
no aspects of the Company’s financial condition that could have a material
adverse effect on the performance by the Company of its servicing obligations
under the PWS Agreement and this Assignment and Assumption
Agreement;
f. There
are
no material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any third-party
originator; and
g. There
are
no affiliations, relationships or transactions relating to the Company or any
Subservicer with respect to this Securitization Transaction and any party
thereto of a type described in Item 1119 of Regulation AB.
Notwithstanding
anything to the contrary in the Agreement, the Company shall (or shall cause
any
Subservicer and Third-Party Originator to), provided that the Company (and
each
Subservicer and Third-Party Originator, as the case may be) meets the disclosure
requirements of Items 1117 and 1119 of Regulation AB, as the case may be, for
such disclosure period (i) immediately notify the Assignor and XXXX XX in
writing of (A) legal proceedings pending against the Company, or proceedings
known to be contemplated by governmental authorities against the
Company which in the judgment of the Company would be, in each case,
reasonably expected to be material to purchasers of securities backed by the
Mortgage Loans, (B) any known affiliations or relationships of the type
described in Item 1119(b) of Regulation AB that develop following the date
hereof between the Company and any of the above listed parties or other
parties identified in writing by the Assignor or XXXX XX with respect to the
Securitization Transaction and (ii) provide to the Assignor and XXXX XX a
description of such proceedings, affiliations or relationships.
Each
such
notice/update should be sent to the Assignor by e-mail to
xxxXXxxxxxxxxxxxxx@xxxx.xxx. Additionally, all such notifications,
other than those pursuant to (i)(A) above, should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxxx Xxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxx.xxx
With
a
copy to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Global
Credit Administration
Facsimile: (000)
000-0000
Notifications
pursuant to (i)(A) above should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000-0000
Attention:
General Counsel
Telecopier
No.: (000) 000-0000
With
copies to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Global
Credit Administration
Facsimile: (000)
000-0000
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Xxxxxxxx Xxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxx.xxx
Recognition
of Assignee
7. From
and
after the date hereof, the Company shall recognize the Assignee as owner of
the
Mortgage Loans, and acknowledges that the Mortgage Loans will be part of a
REMIC, and will service the Mortgage Loans in accordance with the PWS
Agreement. It is the intention of the Assignor, the Company and the
Assignee that this Assignment and Assumption Agreement shall be binding upon
and
for the benefit of the respective successors and assigns of the parties hereto.
Neither the Company nor the Assignor shall amend or agree to amend, modify,
waive, or otherwise alter any of the terms or provisions of the PWS Agreement
which amendment, modification, waiver or other alteration would in any way
affect the Mortgage Loans without the prior written consent of the
Assignee.
The
Company shall prepare for and deliver to the Assignee and the Master Servicer
a
statement with respect to each mortgaged property acquired through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan
(“REO Property”) that has been rented showing the aggregate rental income
received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Assignee to comply with the reporting requirements of the REMIC provisions
of
the Code. The net monthly rental income, if any, from such REO
Property shall be deposited in the related collection account no later than
the
close of business on each determination date. The Company shall
perform, or cause to be performed, the tax reporting and withholding related
to
foreclosures, abandonments and cancellation of indebtedness income as specified
by Sections 1445, 6050J and 6050P of the Code by preparing and filing such
tax
and information returns, as may be required. In the event that Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 acquires
any
REO Property as aforesaid or otherwise in connection with a default or default
becoming reasonably foreseeable on an Mortgage Loan, the Company shall cause
such REO Property to be disposed prior to three years after its acquisition
by
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 or,
at
the expense of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2007-1, request more than 60 days prior to the day on which such three-year
period would otherwise expire, an extension of the three-year grace period
unless the Assignee shall have been supplied with an opinion of counsel
addressed to the Assignee rendered by nationally recognized tax counsel
specializing in such matters (such opinion not to be an expense of the Assignee)
to the effect that the holding by Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1 of such REO Property subsequent to such three-year
period will not result in the imposition of taxes on “prohibited transactions”
of any REMIC as defined in Section 860F of the Code or cause any REMIC to fail
to qualify as a REMIC, in which case Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-1 may continue to hold such REO Property (subject
to
any conditions contained in such opinion of counsel). Notwithstanding
any other provision of the Servicing Agreement, no REO Property acquired by
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 shall
be
rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-1 in such a manner or pursuant to any
terms that would (i) cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code or (ii) subject
any REMIC to the imposition of any federal, state or local income taxes on
the
income earned from such REO Property under Section 860G(c) of the Code or
otherwise, unless the Company has agreed to indemnify and hold harmless Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1 with respect
to the imposition of any such taxes.
Pursuant
to Section 11.18 of the PWS Agreement, the Company hereby acknowledges that
the
representations and warranties set forth in Section 3.01 of the PWS Agreement
with respect to the Company and Section 3.02 of the PWS Agreement and in the
Term Sheet with respect to the Mortgage Loans are being made by the Company
as
of March 30, 2007 (provided that with respect to those representations and
warranties set forth in Section 3.02, the Company shall only restate those
representations and warranties that relate in any way to a Mortgage Loan (or
any
set of facts with respect thereto) as of origination and any representations
and
warranties that relate to the servicing of such Mortgage Loan as of the Closing
Date). The Assignor retains the right to enforce the representations
and warranties set forth in Section 3.02 of the PWS Agreement and in the Term
Sheet against the Company.
8. Notwithstanding
any term hereof to the contrary, the execution and delivery of this Assignment
and Assumption Agreement by the Assignee is solely in its capacity as trustee
for Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-1
and
not individually, and any recourse against the Assignee in respect of any
obligations it may have under or pursuant to the terms of this Assignment and
Assumption Agreement shall be limited solely to the assets it may hold as
trustee of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2007-1.
The
Company shall indemnify and hold harmless the Assignor, each affiliate of the
Assignor, XXXX XX, the Assignee, Bear, Xxxxxxx & Co. Inc. (the
“Underwriter”) and each affiliate of the Underwriter, each Person (including,
but not limited to, the Master Servicer) responsible for the preparation,
execution or filing of any report required to be filed with the Commission,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act, each Person who controls the Assignor, XXXX XX, the
Assignee or the Underwriter (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
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
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(i)
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(A) any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, data, accountants’ letter or
other material provided under Sections 6.04, 6.07, 11.18 or 11.19
of the
PWS Agreement by the Company or by another third-party at the direction
of
the Company, or provided under Sections 6.04, 6.07, 11.18 or 11.19
of the
PWS Agreement by or at the direction of any Subservicer, Subcontractor
or
Third-Party Originator (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;
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(ii)
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any
breach by the Company of its obligations under Sections 6.04, 6.07,
11.18
or 11.19 of PWS Agreement, including particularly any failure by
the
Company, any Subservicer, any Subcontractor or any Third-Party Originator
to deliver any information, report, certification, accountants’ letter or
other material when and as required under Sections 6.04, 6.07, 11.18
or
11.19 of the PWS Agreement, including any failure by the Company
to
identify any Subcontractor “participating in the servicing function”
within the meaning of Item 1122 of Regulation
AB;
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(iii)
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any
breach by the Company of a representation or warranty set forth in
Section
3.01 of the PWS Agreement or in a writing furnished pursuant to Section
3.01 of the PWS Agreement and made as of a date prior to the date
hereof,
to the extent that such breach is not cured by the date hereof, or
any
breach by the Company of a representation or warranty in a writing
furnished pursuant to Section 3.01 of the PWS Agreement to the extent
made
as of a date subsequent to the date hereof;
or
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(iv)
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the
negligence, bad faith or willful misconduct of the Company in connection
with its performance under Sections 6.04, 6.07, 11.18 or 11.19 of
the PWS
Agreement.
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For
purposes of clarification with respect to the indemnification given above,
the
Company shall only be required to indemnify the Indemnified Parties with respect
to Regulation AB Losses that any Indemnified Party incurs when such Regulation
AB Losses arise out of or are based upon clauses (i), (ii), (iii) and (iv)
above
and only with respect to the Mortgage Loans; provided, that the indemnification
provided under Section 11.18 of the PWS Agreement shall be the only
indemnification with respect to Regulation AB Losses; provided, further, that
if
the loan performance information is not provided to the Company pursuant to
the
PWS Agreement, the Company shall have no obligation to indemnify any Indemnified
Party for regulation AB Losses arising from the Company’s failure to provide
Static Pool Information.
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 Section 11.18 of the PWS
Agreement, the Company shall promptly reimburse the Assignor, XXXX XX and each
Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act, 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 Company, any Subservicer, any Subcontractor or any Third-Party
Originator. This indemnification shall survive the termination of
this Agreement or the termination of any party to this Agreement.
Modification
of the PWS Agreement as it Relates Solely to the Mortgage
Loans
9. The
Assignor and the Company hereby amend the PWS Agreement as follows:
(a) The
following definitions shall be added to Article I of the PWS
Agreement:
Assignee:
U.S. Bank National Association, as trustee for the holders of Prime Mortgage
Trust, Pass-Through Certificates, Series 2007-1.
Master
Servicer: With respect to any Securitization Transaction, the
“master servicer,” if any, identified in the related transaction documents and
as identified in writing to the Company as the master servicer for such
Securitization Transaction.
Nonrecoverable
Advance: Any advance previously made by the Company pursuant to Section 5.03
or any Servicing Advance which, in the good faith judgment of the Company,
may
not be ultimately recoverable by the Company from Liquidation Proceeds or
otherwise. The determination by the Company that it has made a
Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate of the
Company delivered to the Purchaser and the Master Servicer and detailing the
reasons for such determination.
Prepayment
Period: The month preceding the month in which the related
Remittance Date occurs.
REMIC:
A “real estate mortgage investment conduit” as defined in Section 860D of the
Code.
REMIC
Provisions: The provisions of the federal income tax law relating to REMICs,
which appear at Sections 860A through 860G of the Code, and related provisions
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time.
XXXX
XX: Structured Asset Mortgage Investments II Inc.
Servicing
Fee Rate: A per annum rate equal to 0.250%.
Servicing
Modification: Any modification of a Mortgage Loan which is effected by the
Company in accordance with the terms of this Agreement.
Trustee:
U.S. Bank National Association.
(b) The
following sentence is added as the last sentence of the definition of Principal
Prepayment:
Partial
principal Prepayments shall be applied in accordance with the terms of the
related Mortgage Note.
(c) The
first sentence of Subsection (c) of the definition of “Eligible Account” is
deleted in its entirety and replaced with the following:
“in
a separate non-trust account (which
is not fully insured by FDIC or other insurance) in an Eligible
Institution.”
(d) The
following is added to the last sentence of the definition of “Eligible
Institution”:
“;
provided that Chevy Chase Bank,
F.S.B. shall cease to be an Eligible Institution in the event that either its
short-term or long-term debt rating is reduced below the rating in effect on
April 1, 2006.”
(e) Subsection
3.02(nn) is deleted in its entirety and replaced with the
following:
“(nn) The
Mortgagor has not
notified the Company, and the Company does not have any knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers Civil Relief
Act;”
(f) Section
4.01 of the PWS Agreement is hereby amended by replacing the second paragraph
with the following two paragraphs:
Consistent
with and in addition to the terms set forth in this Agreement, if a Mortgage
Loan is in default or such default is reasonably foreseeable, the Company 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, including without limitation, to (1) capitalize
any
amounts owing on the Mortgage Loan by adding such amount to the outstanding
principal balance of the Mortgage Loan, (2) defer such amounts to a later date
or the final payment date of such Mortgage Loan, (3) extend the maturity of
any
such Mortgage Loan, (4) amend the related Mortgage Loan to reduce the related
Mortgage Interest Rate with respect to any Mortgage Loan, (5) convert the
Mortgage Interest Rate on any Mortgage Loan from a fixed rate to an adjustable
rate or vice versa, (6) with respect to a Mortgage Loan with an initial fixed
rate period followed by an adjustable rate period, extend the fixed period
and
reduce the adjustable rate period, and/or (7) forgive the amount of any
interest, principal or servicing advances owed by the related Mortgagor;
provided that, in the Company's reasonable and prudent determination, such
waiver, modification, postponement or indulgence: (A) is not materially adverse
to the interests of the Purchaser on a present value basis using reasonable
assumptions (including taking into account any estimated realized loss (as
defined in the related pooling and servicing agreement) that might result absent
such action); and (B) does not amend the related Mortgage Note to extend the
maturity thereof later than the date of the Latest Possible Maturity Date (as
such term is defined in the related pooling and servicing agreement); provided,
further, with respect to any Mortgage Loan that is not in default or if default
is not reasonably foreseeable, unless the Company has provided to the Purchaser
a certification addressed to the Purchaser, based on the advice of counsel
or
certified public accountants that have a national reputation with respect to
taxation of REMICs that a modification of such Mortgage Loan will not result
in
the imposition of taxes on or disqualify from REMIC status any of the REMICs
and
has obtained the prior written consent of the Purchaser, the Company shall
not
permit any modification with respect to any Mortgage
Loan. Notwithstanding the foregoing, for any waiver, modification,
postponement or indulgence (not including any partial releases, assumptions
of
mortgages or modifications of any Mortgage Loan that is done in connection
with
compliance with the Relief Act) which the Company reasonably anticipates may
result in a realized loss of 20% or more of the outstanding principal balance
of
a Mortgage Loan, the Company shall present such proposed waiver, modification,
postponement or indulgence, together with any supporting documentation, to
the
Master Servicer for consideration and approval. The Company shall
submit all waivers, modifications or variances of the terms of any Mortgage
Loan
with respect to partial releases, assumptions of mortgages or for modifications
done in furtherance of compliance with Relief Act, together with any supporting
documentation, to the Master Servicer for consideration and
approval.
In
connection with any such Servicing
Modification, the Servicer may reimburse itself from the Trust for any
outstanding Monthly Advances and Servicing Advances in the same calendar
month
as the Servicing Modification to the extent that such Monthly Advances or
Servicing Advances are reimbursable to the Servicer and to the extent of
the
related principal portion of funds available for the related Distribution
Date
(as defined in the related pooling and servicing agreement). To the extent
there
are not sufficient principal funds available on the related Distribution
Date to
reimburse the Servicer for such Monthly Advances and Servicing Advances,
the
Servicer may reimburse itself on a first priority basis from related principal
funds that are available on future Distribution Dates. If any mortgagor’s
obligation to repay any outstanding amounts due under the terms of the related
Mortgage Loan for which a Monthly Advance or Servicing Advance has been made
by
the Servicer is forgiven, any such Monthly Advance or Servicing Advance will
be
treated as a realized loss which will be incurred on the Distribution Date
related to the calendar month during which the Servicing Modification
occurred.
(g) The
following are added as the last three paragraphs of Section 4.01 of the PWS
Agreement:
“Notwithstanding
anything to the contrary contained herein, the Company shall not permit any
modification that may result in a realized loss of 20% or more of the
outstanding principal balance of a Mortgage Loan without
permission of the Master Servicer.
Notwithstanding
anything to the contrary contained herein, any REO Property shall be disposed
of
by the Company before the close of the third taxable year following the taxable
year in which the related Mortgage Loan became an REO Property, unless the
Company is otherwise directed in writing by the Master Servicer.
The
Company shall comply with any written instructions, to the extent the Company
is
able to reasonably comply, received from the Master Servicer or the Assignor
pertaining to the servicing of the Mortgage Loans and the acquisition, holding
or disposition of any REO Property to ensure the continued qualification of
each
REMIC as a REMIC in accordance with the REMIC Provisions.”
(h) Section
5.02 of the PWS Agreement is hereby amended by deleting “no later than the fifth
Business Day of the following month in hard copy, which report, in hard copy,”
after “mutually agreed upon by both Purchaser and Company, and” in the first
paragraph.
(i)Section
5.02 of the PWS Agreement is hereby amended by deleting the second sentence
in
the last paragraph in its entirety and replacing it with the
following:
“The
Company shall also provide a
monthly report, in the form of Exhibit E hereto, or such other form as is
mutually acceptable to the Company, the Purchaser and any Master Servicer,
Exhibit F and Exhibit R with respect to defaulted mortgage loans, Exhibit N
with
respect to realized losses and gains, Exhibit O with respect to modified
mortgage loans, Exhibit P with respect to claims submitted and Exhibit Q with
respect to loss severity, with each such report.”
(j) Exhibit
E of the PWS Agreement is deleted in its entirety and replaced with the
following or such other format as mutually agreed upon between the Company
and
the Master Servicer:
EXHIBIT
E
REMITTANCE
OVERVIEW REPORT
Remittance
Overview Report: Provides loan level detail regarding the
remittance that will be submitted to EMC Master Servicing and contains the
following data fields in the order below:
|
Field
|
Field
Description
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Master
Servicer Loan Number
|
NUMERIC
(9,0)
|
|
Current
Investor Category
|
VARCHAR
(5)
|
|
Original
Investor Category
|
VARCHAR
(5)
|
|
Servicer
Loan Number
|
VARCHAR
(15)
|
|
Cutoff
Date
|
DATE
(MM/DD/YYYY)
|
|
Loan
Next Due Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Pending
Interest Rate
|
NUMERIC
(7,7)
|
|
Servicing
Fee Rate
|
NUMERIC
(7,7)
|
|
MI
Rate
|
NUMERIC
(7,7)
|
|
Scheduled
P&I Amount (P & I Constant)
|
NUMERIC
(12,2)
|
|
ARM
Index
|
NUMERIC
(7,7)
|
|
Pending
ARM Index
|
NUMERIC
(7,7)
|
|
Beginning
Scheduled Principal Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Remitted
|
NUMERIC
(12,2)
|
|
Actual
Principal Curtailment Remitted
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Remitted
|
NUMERIC
(12,2)
|
|
Liquidation
Principal Remitted
|
NUMERIC
(12,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(12,2)
|
|
Scheduled
Gross Interest
|
NUMERIC
(12,2)
|
|
Actual
Interest Remitted
|
NUMERIC
(12,2)
|
|
Scheduled
Service Fee Amount
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Variance
|
NUMERIC
(12,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Remitted
|
NUMERIC
(12,2)
|
|
PMI
Premium Remitted
|
NUMERIC
(12,2)
|
|
Additional
Fees Remitted
|
NUMERIC
(12,2)
|
|
Ending
Scheduled Balance
|
NUMERIC
(12,2)
|
|
Actual
Amount Remitted Total (each loan)
|
NUMERIC
(12,2)
|
|
Beginning
Actual Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Collected
|
NUMERIC
(12,2)
|
|
Actual
Curtailments Collected
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Collected
|
NUMERIC
(12,2)
|
|
Gross
Interest Collected
|
NUMERIC
(12,2)
|
|
Net
Interest Collected
|
NUMERIC
(12,2)
|
|
Service
Fee Collected
|
NUMERIC
(12,2)
|
|
Actual
Ending Principal Balance
|
NUMERIC
(12,2)
|
|
Liquidation
Date
|
DATE
(MM/DD/YYYY)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Liquidation
Expenses
|
NUMERIC
(12,2)
|
|
Principal
and Interest Advanced Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Calculated
Loss to Trust
|
NUMERIC
(12,2)
|
|
Net
Interest Remitted
|
NUMERIC
(12,2)
|
|
Collected
Interest Not Remitted
|
NUMERIC
(12,2)
|
|
Ending
Advance Balance
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Flag
|
VARCHAR
(1)
|
|
Soldiers
and Sailors Old Rate
|
NUMERIC
(7,7)
|
|
Soldiers
and Sailors Old P & I
|
NUMERIC
(12,2)
|
|
Modified
Date
|
DATE
(MM/DD/YYYY)
|
|
Stop
Advance Flag
|
|
|
Stop
Advance Date
|
DATE
(MM/DD/YYYY)
|
|
BPO
Value
|
NUMERIC
(12,2)
|
|
Cash
Flow Group
|
VARCHAR
(2)
|
|
MSP
Principal Balance
|
NUMERIC
(12,2)
|
|
Debt
Forgiven / Charged Off
|
NUMERIC
(12,2)
|
|
Mortgagor
PITI Payment
|
NUMERIC
(12,2)
|
|
Bankruptcy
Status
|
VARCHAR
(2)
|
|
Foreclosure
Status
|
VARCHAR
(2)
|
|
Modification
Status
|
|
|
Interest
Only Loan
|
VARCHAR
(2)
|
|
Escrowed
Loan
|
VARCHAR
(2)
|
|
Monthly
Escrow Deposit
|
NUMERIC
(12,2)
|
|
Escrow
Balance
|
NUMERIC
(12,2)
|
|
Escrow
Advance Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Mortgagor
Recoverable Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
Non-Recoverable
Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
HUD
235 Loan Status
|
VARCHAR
(2)
|
|
HUD
235 Balance
|
NUMERIC
(12,2)
|
|
Late
Charge Balance
|
NUMERIC
(12,2)
|
|
Buydown
Loan Status
|
VARCHAR
(2)
|
|
Monthly
Buydown Amount
|
NUMERIC
(12,2)
|
|
Monthly
Buydown Funds Balance
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Amount Waived
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Waived Reason Code
|
VARCHAR
(3)
|
|
Material
Breach Status
|
VARCHAR
(3)
|
|
Material
Breach Code
|
VARCHAR
(3)
|
|
Prefunding
Date
|
DATE
(MM/DD/YYYY)
|
|
3rd
Party
Recoverable Expenses
|
NUMERIC
(12,2)
|
REMITTANCE
SUMMARY REPORT
Remittance
Summary Report: Provides summary data at a deal
(investor/category) level regarding the remittance that will be submitted to
EMC
Master Servicing and contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Deal
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Category
|
VARCHAR
(5)
|
|
Principal
Remitted
|
NUMERIC
(15,2)
|
|
Curtailments
Remitted
|
NUMERIC
(15,2)
|
|
Curtailment
Adjustments Remitted
|
NUMERIC
(15,2)
|
|
Liquidation
Proceeds Remitted
|
NUMERIC
(15,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(15,2)
|
|
Principal
Amounts Called/Collapsed
|
NUMERIC
(15,2)
|
|
Total
Principal Remitted
|
NUMERIC
(15,2)
|
|
Interest
Remitted
|
NUMERIC
(15,2)
|
|
PMI
Premiums Remitted
|
NUMERIC
(15,2)
|
|
Soldiers
and Sailors Difference
|
NUMERIC
(15,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(15,2)
|
|
Non
Comp Interest Remitted
|
NUMERIC
(15,2)
|
|
Prepayment
Penalties Remitted
|
NUMERIC
(15,2)
|
|
Total
Interest Remitted
|
NUMERIC
(15,2)
|
|
Arrearage
Amount Remitted
|
NUMERIC
(15,2)
|
|
Aggregate
Loss to Trust
Total
Manual Adjustments
|
NUMERIC
(15,2)
|
|
Debt
Forgiven/ Charged Off
|
NUMERIC
(15,2)
|
|
Additional
Fees Collected
|
NUMERIC
(15,2)
|
|
Total
Remittance
|
NUMERIC
(15,2)
|
(k)
Exhibit F of the PWS Agreement is deleted in its entirety and replaced with
the
following or such other format as mutually agreed upon between the Company
and
the Master Servicer:
EXHIBIT
F
DELINQUENCY
SUMMARY REPORT
Delinquency
Summary Report: Provides summary data at the servicer investor
level regarding loan performance that will be submitted to EMC Master Servicing
and contains the following data fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Performance
type (Current, 30 days, 60 days, 90+ days, Foreclosure, Bankruptcy
or
PIF)
|
VARCHAR
(6)
|
|
Count
of Loans
|
NUMERIC
(10,0)
|
|
Percent
of Investor Number
|
NUMERIC
(7,7)
|
|
Deal
UPB
|
NUMERIC
(14,2)
|
|
Percent
of Deal UPB
|
NUMERIC
(7,7)
|
|
Arrears
Balance
|
NUMERIC
(14,2)
|
|
Percent
of Arrears Balance
|
NUMERIC
(7,7)
|
|
Foreclosure
Quick Sale
|
NUMERIC
(12,2)
|
|
REO
Book Value
|
NUMERIC
(12,2)
|
(l)
Section (iv) of the first paragraph of Exhibit J is hereby amended by replacing
“10th calendar
day” with “5th
Business Day”.
(m)
Exhibit M of the PWS Agreement is deleted in its entirety and replaced with
the
following:
EXHIBIT
M
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:1
|
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
|
_____________________
1 Whenever
used in this
Exhibit M, Applicable Servicing Criteria, the following words shall have
the
meaning specified below:
|
1.
|
“asset
pool” shall mean the pool of Mortgage Loans sold by Chevy Chase Bank,
F.S.B. (the “Asserting Party”) to the investor pursuant to the transaction
agreements and which are included on Servicer’s
platform.
|
|
2.
|
“investor”
means the purchaser under the then current purchase, sale and
servicing
agreement between the investor and the Asserting Party, and any
assignees
of the Purchaser, including the Master
Servicer.
|
|
3.
|
“investor
reports” “reports to investors” mean the reports required to be sent to
the investor as required by the transaction
agreements.
|
|
4.
|
“Servicer”
and “servicer” means Chevy Chase Bank. F.S.B. acting in its capacity as
Servicer under the then current purchase, sale and servicing
agreement
between the investor and the Asserting Party
.
|
|
5.
|
“transaction
agreements” mean the then current purchase, sale and servicing agreement
between the investor and the Asserting Party and any AARs of
such
purchase, sale and servicing
agreement.
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission2, are maintained in accordance
with the
transaction agreements and applicable Commission requirements.3 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
(except
for (C) and (D))
|
|
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
|
______________________
2 The
Asserting Party does not file
reports with
the Commission and takes no responsibility
for such
reports.
|
|
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
|
|
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.
|
X4
|
|
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.
|
|
|
(n)
Exhibit N of the PWS Agreement is deleted in its entirety and replaced
with the following or such other format as mutually agreed upon between
the Company and the Master
Servicer:
|
|
|
EXHIBIT
N
|
|
|
CALCULATION
OF GAIN-LOSS DELINQUENT LOANS
|
EMC
Master Servicing Calculation of Gain/Loss on Delinquent Loan
Worksheet
Date:____________________________
|
Prepared
By
|
Phone
Number
|
Email
Address
|
|
Servicer
Loan Number
|
Servicer
Address
|
EMC
Loan Number
|
|
Borrower
Name
|
Property
Address
|
__________________
4 The
Servicer will obtain an assertion
of management and an accompanying 1122 attestation report from the vendor
performing such activities.
|
Liquidation
Type
|
REO
|
Third
Party
|
Short
Sale
|
Charge
off
|
Deed
In Lieu
|
Has
this loan been previously
modified? Yes No
Has
this loan been crammed down in a
bankruptcy? Yes
No
If
“Yes”,
provide amount _______________________________
|
Liquidation
and Acquisition Expenses:
|
Amounts
requiring Amortization Schedule for backup:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
|
Interest
Accrued at Net Rate Less Servicing Fees
|
|
|
Accrued
Servicing Fees
|
Amounts
requiring Additional backup:
|
Attorney’s
Fees
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Attorney’s
Costs
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Taxes
|
Payment
history showing disbursements
|
|
|
Property
Maintenance
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Property
Inspection
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
PMI/Hazard
Insurance Premiums
|
Payment
history showing disbursements
|
|
|
Utility
Expenses
|
Payment
history showing disbursements
|
|
|
Appraisal/BPO
Expenses
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
XXX
Xxxx
|
Payment
history showing disbursements
|
|
|
Cash
For Keys
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Miscellaneous
(itemized)
|
Requires
Itemization and supporting detail
|
|
|
Total
Expenses
|
------------------------------------------------
|
|
|
Credits
to Loan:
|
|
Escrow
Balance/Advance
|
Payment
history showing disbursements and ending balance
|
|
|
Rental
Receipts
|
Payment
history showing application of funds to loan
|
|
|
Hazard
Claim Proceeds
|
Payment
history showing credit to account
|
|
|
PMI
Funds
|
EOB
document
|
|
|
Government
Insurance Funds (Part A Funds)
|
EOB
document
|
|
|
REO
Proceeds
|
HUD
1 Settlement Statement
|
|
|
Government
Insurance Funds (Part B Funds)
|
EOB
document
|
|
|
Pool
Insurance Proceeds
|
Payment
history showing credit to account
|
|
|
Other
Credits (itemized)
|
Payment
history showing credit to account
|
|
|
Total
Credits
|
------------------------------------------------
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
NOTE: Do
not combine or net remit items. All expenses and credits should be
documented individually. Claim packages are due by the fifth
business day of the month following receipt of liquidation
proceeds. Late claims may result in delayed claim
payment. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
|
|
(o)
The PWS Agreement is amended by adding the following or such other
format
as mutually agreed upon between the Company and the Master
Servicer:
|
EXHIBIT
O
MODIFIED
LOANS REPORT
Modified
Loans Report: Provides loan level data regarding all loans that
the Servicer has modified with the first modified payment due within thirty
days
following the end of the reporting cycle. The report contains the
following data fields in the order below:
|
Field
Description
|
Field
Description
|
|
Loan
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Original
Category
|
VARCHAR
(5)
|
|
Current
Category
|
VARCHAR
(5)
|
|
Stop
Adv Flag
|
VARCHAR
(3)
|
|
Modified
Due Date
|
DATE
(MM/DD/YYYY)
|
|
Mod
Loan Curtailment
|
NUMERIC
(15,2)
|
|
Mod
Loan Xxxx Adjustment
|
NUMERIC
(15,2)
|
|
Principal
Advanced Capped
|
NUMERIC
(15,2)
|
|
Net
Interest Advanced Capped
|
NUMERIC
(15,2)
|
|
Service
Fee Advanced Capped
|
NUMERIC
(15,2)
|
|
Third
Party Bal Capped
|
NUMERIC
(15,2)
|
|
Amount
of Other Capped
|
NUMERIC
(15,2)
|
|
Borrower
Interest Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Fee Code Arrearage Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Principal Contribution
|
NUMERIC
(15,2)
|
|
Amt
Forgiven
|
NUMERIC
(15,2)
|
|
Beg
Delq Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Delq Int Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Int Bal
|
NUMERIC
(15,2)
|
|
Excess
Int Adjust
|
NUMERIC
(15,2)
|
|
Excess
Interest on Mod
|
NUMERIC
(15,2)
|
(p)
The PWS Agreement is amended by adding the following or such other format as
mutually agreed upon between the Company and the Master Servicer:
EXHIBIT
P
CLAIMS
SUBMITTED REPORT
Claims
Submitted Report: Provides loan level detail regarding claims
submitted by the servicer’s investor number that will be submitted to EMC Master
Servicing and contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Escrow
Balance or Advance Balance
|
NUMERIC
(12,2)
|
|
Corporate
Expense Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Replacement
Reserve Balance
|
NUMERIC
(12,2)
|
|
Suspense
Balance
|
NUMERIC
(12,2)
|
|
Third
Party Expense Balance
|
NUMERIC
(12,2)
|
|
Charge
Off Amount
|
NUMERIC
(12,2)
|
|
Side
Note Collections
|
NUMERIC
(12,2)
|
|
Claim
Amount Submitted
|
NUMERIC
(12,2)
|
|
|
(q)
The PWS Agreement is amended by adding the following or such other
format
as mutually agreed upon between the Company and the Master
Servicer:
|
EXHIBIT
Q
LOSS
SEVERITY REPORT
Loss
Severity Summary Report: Provides summary data at the deal level
regarding loss severity that will be submitted to EMC Master Servicing and
contains the following data fields in the order below:
|
Field
|
Field
Description
|
|
Month
End
|
DATE
(MM/DD/YYYY)
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Loan
Due Date
|
DATE
(MM/DD/YYYY)
|
|
PIF
Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Service
Fee Rate
|
NUMERIC
(7,7)
|
|
P
& I Constant
|
NUMERIC
(12,2)
|
|
Scheduled
Beginning Balance
|
NUMERIC
(12,2)
|
|
Arrearage
Balance
|
NUMERIC
(12,2)
|
|
Total
Legal and Other Expenses
|
NUMERIC
(12,2)
|
|
Scheduled
Advanced Interest
|
NUMERIC
(12,2)
|
|
Scheduled
Liquidated Amount
|
NUMERIC
(12,2)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
P
& I Advance Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Net
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Scheduled
Net Interest
|
NUMERIC
(12,2)
|
|
Net
Liquidated Funds Remitted
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) Amount
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Trust
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Servicer
|
NUMERIC
(12,2)
|
|
Total
Loss Severity %
|
NUMERIC
(7,7)
|
|
Total
Loss Severity % to Trust
|
NUMERIC
(7,7)
|
|
Total
Liquidated Remitted
|
NUMERIC
(12,2)
|
|
Claim
on Trust Loss
|
NUMERIC
(12,2)
|
|
Claim
on Servicer Loss
|
NUMERIC
(12,2)
|
|
Total
Claim Amount
|
NUMERIC
(12,2)
|
|
|
(r)
|
The
PWS Agreement is amended by adding the following or such other format
as mutually agreed upon between the Company and the Master
Servicer:
|
|
|
EXHIBIT
R
|
|
|
DEFAULT
OVERVIEW REPORT
|
Default
Overview Report: Provides loan level detail regarding the
defaulted loans that are being serviced and reported to EMC Master
Servicing. The report contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Servicer
loan number
|
VARCHAR
(15)
|
|
SBO
loan number
|
VARCHAR
(9)
|
|
Zip
Code
|
VARCHAR
(5)
|
|
Original
loan amount
|
NUMERIC
(12,2)
|
|
Original
value amount
|
NUMERIC
(12,2)
|
|
Origination
date
|
DATE
(MM/DD/YYYY)
|
|
Loan
type
|
VARCHAR
(2)
|
|
Actual
due date
|
DATE
(MM/DD/YYYY)
|
|
Current
loan amount
|
NUMERIC
(12,2)
|
|
Corporate
expense balance
|
NUMERIC
(12,2)
|
|
Escrow
balance/advance balance
|
NUMERIC
(12,2)
|
|
Suspense
balance
|
NUMERIC
(12,2)
|
|
Restricted
escrow balance
|
NUMERIC
(12,2)
|
|
Current
Value date
|
DATE
(MM/DD/YYYY)
|
|
Current
value amount
|
NUMERIC
(12,2)
|
|
Current
value source
|
VARCHAR
(15)
|
|
VA
LGC/ FHA Case number
|
VARCHAR
(15)
|
|
%
of MI coverage
|
NUMERIC
(7,7)
|
|
MI
certificate number
|
VARCHAR
(15)
|
|
LPMI
Cost
|
NUMERIC
(7,7)
|
|
Occupancy
status
|
VARCHAR
(1)
|
|
First
vacancy date
|
DATE
(MM/DD/YYYY)
|
|
Property
condition
|
VARCHAR
(2)
|
|
Property
type
|
VARCHAR
(2)
|
|
Delinquency
flag
|
VARCHAR
(2)
|
|
Reason
for default
|
VARCHAR
(2)
|
|
FNMA
action code
|
VARCHAR
(3)
|
|
FNMA
delinquency reason code
|
VARCHAR
(3)
|
|
Loss
mit flag
|
VARCHAR
(2)
|
|
Loss
mit type
|
VARCHAR
(2)
|
|
Loss
mit approval date
|
DATE
(MM/DD/YYYY)
|
|
Loss
mit removal date
|
DATE
(MM/DD/YYYY)
|
|
Repay
first due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
next due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan broken/reinstated/closed date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan created date
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
flag
|
VARCHAR
(2)
|
|
Foreclosure
attorney referral date
|
DATE
(MM/DD/YYYY)
|
|
Actual
first legal date
|
DATE
(MM/DD/YYYY)
|
|
Date
FC sale scheduled
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
actual sale date
|
DATE
(MM/DD/YYYY)
|
|
Actual
redemption end date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction complete date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
flag
|
VARCHAR
(2)
|
|
Actual
bankruptcy start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
chapter
|
VARCHAR
(2)
|
|
Bankruptcy
Case Number
|
VARCHAR
(15)
|
|
Post
petition due date
|
DATE
(MM/DD/YYYY)
|
|
Actual
discharge date
|
DATE
(MM/DD/YYYY)
|
|
Date
relief/dismissal granted
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim filed date
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim amount filed
|
NUMERIC
(12,2)
|
|
MI
claim amount paid
|
NUMERIC
(12,2)
|
|
MI
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
Title
approval letter received date
|
DATE
(MM/DD/YYYY)
|
|
Title
package HUD/VA date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011A transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part A funds received date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011 B transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part B funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
XXX submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
first funds received amount
|
NUMERIC
(12,2)
|
|
VA
first funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
claims funds received amount
|
NUMERIC
(12,2)
|
|
REO
flag
|
VARCHAR
(2)
|
|
REO
repaired value
|
NUMERIC
(12,2)
|
|
REO
value (as is)
|
NUMERIC
(12,2)
|
|
REO
value date
|
DATE
(MM/DD/YYYY)
|
|
REO
value source
|
VARCHAR
(15)
|
|
REO
original list date
|
DATE
(MM/DD/YYYY)
|
|
REO
original list price
|
NUMERIC
(12,2)
|
|
REO
list price adjustment amount
|
NUMERIC
(12,2)
|
|
REO
list price adjustment date
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer received
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer accepted
|
DATE
(MM/DD/YYYY)
|
|
REO
scheduled close date
|
DATE
(MM/DD/YYYY)
|
|
REO
actual closing date
|
DATE
(MM/DD/YYYY)
|
|
REO
sales price
|
NUMERIC
(12,2)
|
|
REO
net sales proceeds
|
NUMERIC
(12,2)
|
|
Estimated
loss
|
NUMERIC
(12,2)
|
(s)
Section 11.04 of the PWS Agreement is deleted in its entirety and replaced
with
the following:
Section
11.04 Governing Law.
This
Agreement and the related Term Sheets shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws other than Section 5-1401 of the New York General
Obligations Law which shall govern. The obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
10. The
Company hereby acknowledges that EMC Mortgage Corporation has been appointed
as
the master servicer (the “Master Servicer”) of the Mortgage Loans pursuant to
the Pooling and Servicing Agreement, dated as of March 1, 2007, among XXXX
XX,
the Assignor, as seller and master servicer and the Assignee, and that the
Master Servicer has the right to enforce all obligations of the Company under
the PWS Agreement with respect to the servicing of the Mortgage
Loans. The Company shall make all distributions under the PWS
Agreement to the Master Servicer by wire transfer of immediately available
funds
to:
EMC
Master Servicing Remittances
Bank: Chase
Bank of Texas
Branch: Irving,
Texas
Account
Name: EMC Mortgage Corporation
ABA
#
000000000
ACCOUNT
#
000000709377717
Reference: M/S
Remittance March 1,
2007 Remit for Chevy Chase Bank, F.S.B.
Attention: LSBO
Group-MS
The
Company shall deliver all reports required to be delivered under the PWS
Agreement to the Master Servicer at:
EMC
Mortgage Corporation
000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxxx Xxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxx.xxx
11. Notices:
The
Assignor’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment and Assumption Agreement is:
EMC
Mortgage Corporation
000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxxx Xxxxx
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxx.xxx
With
a
copy to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx XxXxxxxx
The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment and Assumption Agreement is:
U.S.
Bank
National Association, as Trustee
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
XX 00000
Attention:
Corporate Trust Services, PRIME 2007-1
Telecopier
No.: (000) 000-0000
The
Company’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment and Assumption Agreement is:
Chevy
Chase Bank, F.S.B.
0000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxx
With
a
copy to:
Xxxxxx
X.
Xxxxxx, Esq.
Chief
Mortgage Counsel
0000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Miscellaneous:
12. Each
party will pay any commissions it has incurred and the Assignor shall pay the
fees of its attorneys and the reasonable fees of the attorneys of the Assignee
and the Company in connection with the negotiations for, documenting of and
closing of the transactions contemplated by this Assignment and Assumption
Agreement.
13. The
Servicing Fee Rate shall be a rate per annum equal to 25 basis
points.
14. This
Assignment and Assumption Agreement shall be construed in accordance with the
laws of the State of New York (other than Section 5-1401 of the New York General
Obligations Law), without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws.
15. No
term or provision of this Assignment and Assumption 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.
16. This
Assignment and Assumption Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. Any entity into which the Assignor, the
Assignee or the Company may be merged or consolidated shall, without the
requirement for any further writing, be deemed the Assignor, the Assignee or
the
Company, respectively, hereunder.
17. This
Assignment and Assumption Agreement shall survive the conveyance of the Mortgage
Loans, the assignment of the PWS Agreement and the Term Sheet to the extent
of
the Mortgage Loans by Assignor to Assignee and the termination of the PWS
Agreement and Term Sheet.
18. This
Assignment and Assumption 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.
19. In
the event that any provision of this Assignment and Assumption Agreement
conflicts with any provision of the PWS Agreement and Term Sheet with respect
to
the Mortgage Loans, the terms of this Assignment and Assumption Agreement shall
control.
20. Any
new loan number assigned to a Mortgage Loan by the Assignee shall be provided
to
the Company at the following address: Chevy Chase Bank, F.S.B., 0000 Xxxxx
Xxxxx
Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxx Xxxxx. In addition, if the
Assignee has changed its document custodian from the previous custodian, such
new custodian’s name, address and contact information shall be provided to the
Company at the aforementioned address.
IN
WITNESS WHEREOF, the parties have
caused this Assignment and Assumption Agreement to be executed by their duly
authorized officers as of the date first above written.
|
U.S.
BANK NATIONAL ASSOCIATION, not individually but solely as
Trustee
|
|
|
By: _________________________
Name:_______________________
Title: _______________________
|
|
|
EMC
MORTGAGE CORPORATION,
|
|
|
as
Company
|
|
|
By: _________________________
Name:_______________________
Title: _______________________
|
|
|
CHEVY
CHASE BANK, F.S.B.
|
|
|
By: _________________________
Name:_______________________
Title: _______________________
|
Acknowledged
and Agreed
|
EMC
MORTGAGE CORPORATION,
as
Master Servicer
|
|
|
By: _________________________
Name:_______________________
Title: _______________________
|
|
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
|
|
|
By:__________________________
|
|
|
Name: _______________________
|
|
|
Title: _______________________
|
Exhibit
A:
Mortgage
Loans
|
Loan
Sequence Number
|
Seller
Loan Number
|
Loan
Number
|
Scheduled
Balance
|
Exhibit
B:
PWS
Agreement and Term Sheet
[Provided
upon request]
