ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Execution Copy
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the “AAR Agreement”) is made and entered into as of April 30, 2007 (the “Closing Date”), among DB Structured Products, Inc., having an address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Assignor”), Deutsche Alt-A Securities, Inc., having an address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Assignee”), and IndyMac Bank, F.S.B., having an address at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the “Company” or the “Servicer”) and acknowledged and agreed to by Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”).
In consideration of the mutual promises contained herein, the parties hereto agree that the residential mortgage loans listed on Attachment 1 annexed hereto (the “Assigned Loans”), which are now serviced by the Company on behalf of the Assignor and its successors and assigns pursuant to the Second Amended and Restated Master Mortgage Loan Purchase and Servicing Agreement, dated as of June 1, 2005 as amended and restated to and including July 1, 2006, as amended by Amendment Number One, dated December 1, 2006 and as further amended, by Amendment Number Two, dated February 1, 2007, between the Assignor and the Company (the “Servicing Agreement”), shall be sold by the Assignor to the Assignee pursuant to the Mortgage Loan Purchase Agreement, dated as of April 30, 2007 (the “MLPA”), between the Assignor and the Assignee and subject to the terms of this AAR Agreement. The Assignee intends to transfer all right, title and interest in and to the Assigned Loans to HSBC Bank USA, National Association, as trustee (the “Trustee”) for the holders of Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR3 Mortgage Pass-Through Certificates (the “Certificateholders”) and MBIA Insurance Corporation (the “Insurer”) pursuant to the Pooling and Servicing Agreement, dated as of April 1, 2007 (the “Pooling and Servicing Agreement”) among the Assignee, as depositor, the Trustee, Xxxxx Fargo Bank, N.A., as Master Servicer and as securities administrator (the “Securities Administrator”), and Xxxxxxx Fixed Income Services Inc., as credit risk manager. Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Servicing Agreement. All references herein to the terms “Assigned Loan” or “Mortgage Loan” relate only to the Group I Loans.
Assignment and Assumption
1.
Assignor hereby grants, transfers and assigns to Assignee all of the right, title and interest of Assignor in, to and under the Servicing Agreement as it relates to the servicing of the Assigned Loans. Assignor specifically reserves and does not assign to Assignee any right, title and interest in, to or under the Servicing Agreement, as it relates to loans other than the Assigned Loans set forth on Attachment 1. 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 Subsections 7.04 and 7.05 of the Servicing Agreement, the representations and warranties contained in Subsections 7.01 and 7.02 of the Servicing Agreement, the right to enforce the representations and warranties set forth in Section 7 of the Servicing Agreement against the Company, including, without limitation, the rights set forth in Subsections 7.03 of the Servicing Agreement or the right to negotiate a termination fee in connection with the termination of the Company pursuant to Subsection 14.01(x) of the Servicing Agrement.
Representations, Warranties and Covenants
2.
Assignor warrants and represents to Assignee and Company as of the Closing Date:
(a)
Attached hereto as Attachment 2 is a true and accurate copy of the Servicing Agreement, which agreement is in full force and effect as of the Closing Date 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)
Assignor is the lawful owner of the Assigned Loans with full right to transfer the Assigned Loans and any and all of its interests, rights and obligations under the Servicing Agreement as they relate to the Assigned Loans, free and clear from any and all claims and encumbrances; and upon the transfer of the Assigned Loans to Assignee under the MLPA, Assignee shall have good title to each and every Assigned Loan, as well as any and all of Assignor’s interests, rights and obligations under the Servicing Agreement as they relate to the Assigned Loans, free and clear of any and all liens, claims and encumbrances;
(c)
Assignor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all requisite power and authority to acquire, own and sell the Assigned Loans;
(d)
Assignor has full corporate power and authority to execute, deliver and perform its obligations under this AAR Agreement, and to consummate the transactions set forth herein. The consummation of the transactions contemplated by this AAR Agreement is in the ordinary course of Assignor’s business and will not conflict with, or result in a breach of, any of the terms, conditions or provisions of Assignor’s certificate of incorporation or by-laws or any legal restriction, or any material agreement or instrument to which Assignor 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 Assignor or its property is subject. The execution, delivery and performance by Assignor of this AAR Agreement and the consummation by it of the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Assignor. This AAR Agreement has been duly executed and delivered by Assignor and, upon the due authorization, execution and delivery by Assignee and Company, will constitute the valid and legally binding obligation of Assignor enforceable against Assignor 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; and
(e)
No consent, approval, order or authorization of, or declaration, filing or registration with, any governmental entity is required to be obtained or made by Assignor in connection with the execution, delivery or performance by Assignor of this AAR Agreement, or the consummation by it of the transactions contemplated hereby. Neither Assignor nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Assigned Loans or any interest in the Assigned Loans, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Assigned Loans, or any interest in the Assigned Loans or otherwise approached or negotiated with respect to the Assigned Loans, or any interest in the Assigned Loans with any Person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action, which would constitute a distribution of the Assigned Loans under the Securities Act of 1933, as amended (the “1933 Act”) or which would render the disposition of the Assigned Loans a violation of Section 5 of the 1933 Act or require registration pursuant thereto.
3.
Assignee warrants and represents to, and covenants with, Assignor and Company as of the Closing Date:
(a)
Assignee is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to acquire, own and purchase the Assigned Loans;
(b)
Assignee has full corporate power and authority to execute, deliver and perform its obligations under this AAR Agreement, and to consummate the transactions set forth herein. The consummation of the transactions contemplated by this AAR Agreement is in the ordinary course of Assignee’s business and will not conflict with, or result in a breach of, any of the terms, conditions or provisions of Assignee’s certificate of incorporation or by-laws or any legal restriction, or any material agreement or instrument to which Assignee 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 Assignee or its property is subject. The execution, delivery and performance by Assignee of this AAR Agreement and the consummation by it of the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Assignee. This AAR Agreement has been duly executed and delivered by Assignee and, upon the due authorization, execution and delivery by Assignor and Company, will constitute the valid and legally binding obligation of Assignee enforceable against Assignee 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;
(c)
No consent, approval, order or authorization of, or declaration, filing or registration with, any governmental entity is required to be obtained or made by Assignee in connection with the execution, delivery or performance by Assignee of this AAR Agreement, or the consummation by it of the transactions contemplated hereby; and
(d)
Assignee agrees to be bound by all of the terms, covenants and conditions of the Servicing Agreement with respect to the Assigned Loans, and from and after the Closing Date, Assignee assumes for the benefit of each of Assignor and Company all of Assignor’s obligations thereunder but solely with respect to such Assigned Loans.
4.
Company warrants and represents to, and covenants with, Assignor and Assignee (unless otherwise specified) as of the Closing Date:
(a)
Attached hereto as Attachment 2 is a true and accurate copy of the Servicing Agreement, which agreement is in full force and effect as of the Closing Date 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)
Company is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all requisite power and authority to service the Assigned Loans and otherwise to perform its obligations under the Servicing Agreement;
(c)
Company has full corporate power and authority to execute, deliver and perform its obligations under this AAR Agreement, and to consummate the transactions set forth herein. The consummation of the transactions contemplated by this AAR Agreement is in the ordinary course of Company’s business and will not conflict with, or result in a breach of, any of the terms, conditions or provisions of Company’s certificate of incorporation or by-laws or any legal restriction, or any material agreement or instrument to which 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 Company or its property is subject. The execution, delivery and performance by Company of this AAR Agreement and the consummation by it of the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Company. This AAR Agreement has been duly executed and delivered by Company, and, upon the due authorization, execution and delivery by Assignor and Assignee, will constitute the valid and legally binding obligation of Company, enforceable against 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 Company in connection with the execution, delivery or performance by Company of this AAR Agreement, or the consummation by it of the transactions contemplated hereby;
(e)
Company shall establish a Custodial Account and an Escrow Account under the Servicing Agreement with respect to the Assigned Loans separate from the Custodial Account and Escrow Account previously established under the Servicing Agreement in favor of Assignor, and shall remit collections received. The Custodial Account and Escrow Account shall be entitled “IndyMac Bank, F.S.B., as servicer in trust for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR3”;
(f)
There are no legal proceedings or investigations pending or threatened against the Company or proceedings known to be contemplated by governmental authorities against the Company which in the judgment of the Company would result, in each case, in any material adverse change in the ability of the Company to perform its obligations under this AAR Agreement or the Servicing Agreement. The Company is solvent.
5.
Pursuant to Section 12(3) of the Servicing Agreement, the Company hereby restates to the Assignor (a) the representations and warranties set forth in Subsection 7.01 as of the Closing Date, (b) the representations and warranties set forth in Subsections 7.02(iv), (vi), (viii), (x), (xvii), (except with respect to the first two sentences), (xxiii), to the knowledge of the Company (xxiv), to the knowledge of the Company (xxv) (except with respect to the first sentence), (xxxiv), to the knowledge of the Company (xxxv), to the knowledge of the Company (xliii), (lxvi) and (lxxii) as of the Closing Date, and (c) the representations and warranties set forth in Subsection 7.02, other than those set forth in clause (b) above, as of the related date on which the Assignor purchased the Assigned Loans from the Company, as if such representations and warranties were set forth herein in full. In the event of a breach of any such representations and warranties as of the date set forth above, the Assignor shall be entitled to all the remedies under the Servicing Agreement.
Recognition of Assignee.
6.
From and after the Closing Date, Company shall recognize Assignee as owner of the Assigned Loans, and acknowledges that the Assigned Loans will be part of a REMIC, and will service the Assigned Loans in accordance with the Servicing Agreement, as modified herein, but in no event in a manner that would (i) cause any REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon any REMIC (including but not limited to the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code). It is the intention of Assignor, Company and Assignee that this AAR Agreement shall be binding upon and for the benefit of the respective successors and assigns of the parties hereto. Neither Company nor Assignor shall 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 affect the Assigned Loans without the prior written consent of the Trustee and, with respect to the servicing of the Assigned Loans, the Master Servicer. Company hereby acknowledges that pursuant to the Pooling and Servicing Agreement, the Assignee will assign all of its rights under this AAR Agreement to the Trustee for the benefit of the Certificateholders and the Insurer. Company hereby acknowledges and consents to the assignment by the Assignee of all of the Assignee’s rights against the Company pursuant to this AAR Agreement and to the enforcement or exercise of any right or remedy against the Company pursuant to this AAR Agreement by the Trustee.
Modification of Servicing Agreement
7.
The Company and Assignor hereby modify the Servicing Agreement with respect to the Assigned Loans as follows:
(a)
The following definitions in Section 1 of the Servicing Agreement are modified by deleting such definitions in their entirety and replacing them with the following:
Business Day: Any day other than a Saturday or Sunday, or a day on which banking and savings and loan institutions in the states of California, Minnesota, Maryland or New York are authorized or obligated by law or executive order to be closed.
Cut-off Date: April 1, 2007.
Master Servicer: Xxxxx Fargo Bank, N.A., its successors and assigns.
Nonrecoverable Monthly Advance: Any Monthly Advance or Servicing Advance previously made or proposed to be made in respect of a Mortgage Loan or REO Property that, in the good faith business judgment of the Seller, will not, or, in the case of a proposed Monthly Advance or Servicing Advance, would not be ultimately recoverable from related late payments, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property as provided herein.
(b)
The definition of “Distribution Date” in Section 1 of the Servicing Agreement is amended by deleting the word “following” in the fourth line and replacing it with the word “preceding”; provided however that the first Distribution Date shall be May 18th, 2007.
(c)
Section 1 of the Servicing Agreement is modified by adding the following new definition thereto:
Trustee: HSBC Bank USA, National Association, its successors and assigns.
(d)
Subsection 12A.03(e) to the Servicing Agreement is modified by inserting “, any Master Servicer” immediately after the first reference to Purchaser
(e)
Subsection 12A.05(a) to the Servicing Agreement is modified by deleting subpart (iv) in its entirety and replacing it with the following:
(iv)
deliver, and cause each Subservicer and Subcontractor described in clause (iii) to provide to the Purchaser, any Depositor, any Master Servicer and any other Person that will be responsible for signing the certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect to a Securitization Transaction a certification, signed by the appropriate officer of the Seller, in the form attached hereto as Exhibit 13.
(f)
Subsection 12A.06(c) to the Servicing Agreement is modified by inserting the phrase “and other certifications” immediately after the phrase “compliance and attestation”.
(g)
Subsection 12A.07(a) to the Servicing Agreement is modified by deleting the phrase “in written or electronic form” in its entirety from subpart 12A.07(i)(A).
(h)
Subsection 12A.07(b) to the Servicing Agreement is modified by deleting the entirety of subpart (i) thereto and replacing it with the following:
(i)
Any failure by the Seller, 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 this Section 12A, or any breach by the Seller of a representation or warranty set forth in Subsection 12A.02(a) or in a writing furnished pursuant to Subsection 12A.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 Seller of a representation or warranty in a writing furnished pursuant to Subsection 12A.02(b) to the extent made as of a date subsequent to such closing date, shall immediately and automatically, if not cured within ten (10) days of notice, constitute an Event of Default with respect to the Seller 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 Seller as servicer under this Agreement and/or any applicable Reconstitution Agreement without payment (notwithstanding anything in this Agreement or any applicable Reconstitution Agreement to the contrary) of any compensation to the Seller (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 this Agreement and/or any applicable Reconstitution Agreement expressly provides for the survival of certain rights or obligations following termination of the Seller as servicer, such provision shall be given effect.
(i)
Subsection 14.01 to the Servicing Agreement is hereby modified by deleting subpart (ix) in its entirety and replacing it with the following:
(ix)
[Reserved];
(j)
Subsection 11.01 of Exhibit 8 to the Servicing Agreement is modified by deleting the phrases “the Seller servicing guide” and “during the Preliminary Servicing Period” in the first paragraph of such subsection.
(k)
Subsection 11.01 of Exhibit 8 to the Servicing Agreement is modified by inserting the following after the last sentence of the second paragraph of of such subsection.
Notwithstanding anything to the contrary herein, once the Seller receives notification from the Securities Administrator that the Loan Modification Notice Percentage (as defined in the Pooling and Servicing Agreement) has been met, the Seller may not modify any Mortgage Loans without the prior consent of the Insurer.
(l)
Subsection 11.01 of Exhibit 8 of the Servicing Agreement is further modified by deleting the last sentence in the third paragraph of such subsection.
(m)
Subsection 11.04 of Exhibit 8 to the Servicing Agreement is further modified by deleting the phrase “, including all Prepayment Charges” in subpart (ii).
(n)
Subsection 11.04 of Exhibit 8 to the Servicing Agreement is further modified by deleting the final paragraph of such subsection in its entirety and replacing it with the following:
If the balance on deposit in the Custodial Account exceeds $75,000 as of the commencement of business on any Business Day and the Custodial Account constitutes an Eligible Account solely pursuant to clause (ii) of the definition of Eligible Account, the Seller shall, on or before twelve o’clock noon Eastern time on such Business Day, withdraw from such Custodial Account any amounts in excess of $75,000 and deposit such excess amounts in a separate Custodial Account, which shall be an Eligible Account.
(o)
Subsection 11.05 of Exhibit 8 to the Servicing Agreement is modified by inserting the phrase “or Servicing Advance” after the term “Monthly Advance” in subpart (vii).
(p)
Subsection 11.14 of Exhibit 8 to the Servicing Agreement is further modified by deleting the wire transfer instructions set forth therein and replacing them with the wire transfer instructions set forth in Section 11 of this AAR Agreement.
(q)
Subsection 11.15 of Exhibit 8 to the Servicing Agreement is modified by deleting the subsection in its entirety and replacing it with the following:
No later than the ninth Business Day of each month, the Seller shall furnish to the Master Servicer, in an acceptable electronic format via e-mail, the information specified in Exhibit 11, which data shall reflect information from the Due Period immediately preceding the Distribution Date and such other information with respect to the Mortgage Loans as the Master Servicer may reasonably require to allocate remittances made pursuant to this Agreement and provide appropriate statements with respect to such remittances.
(r)
Subsection 11.23 of Exhibit 8 to the Servicing Agreement is modified by deleting the subsection in its entirety and replacing it with the following:
Subsection 11.23
[Reserved].
(s)
Subsection 11.24 of Exhibit 8 to the Servicing Agreement is modified by deleting the subsection in its entirety and replacing it with the following:
Subsection 11.24
[Reserved].
(t)
Subsection 11.28 of Exhibit 8 to the Servicing Agreement is modified by deleting the third paragraph in its entirety.
(u)
Subsection 11.29 of Exhibit 8 to the Servicing Agreement is modified by deleting the subsection in its entirety and replacing it with the following:
Notwithstanding anything in this Agreement to the contrary, the Seller (a) shall not permit any modification with respect to any Mortgage Loan that would change the Mortgage Interest Rate and (b) shall not (unless the Mortgagor is in default with respect to the Mortgage Loan or such default is, in the judgment of the Seller, reasonably foreseeable) make or permit any modification, waiver or amendment of any term of any Mortgage Loan that would both (i) effect an exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or Treasury regulations promulgated thereunder) or (ii) cause the related trust fund to fail to qualify as a REMIC under the Code or the imposition of any tax on “prohibited transactions” or “contributions” after the startup date under the REMIC Provisions.
Prior to taking any action with respect to the Mortgage Loans which is not contemplated under the terms of this Agreement, the Seller will obtain an Opinion of Counsel acceptable to the Trustee with respect to whether such action could result in the imposition of a tax upon the REMIC (including but not limited to the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in Section 860G(d) of the Code) (either such event, an “Adverse REMIC Event”), and the Seller shall not take any such action or cause the related trust fund to take any such action as to which it has been advised that an Adverse REMIC Event could occur.
The Seller shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in the REMIC. The Seller shall not enter into any arrangement by which the REMIC will receive a fee or other compensation for services nor permit the REMIC to receive any income from assets other than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted investments” as defined in Section 860G(a)(5) of the Code.
(v)
Exhibit 11 of the Servicing Agreement is modified to include the information set forth on Attachment 3 hereto.
(w)
Exhibit 13 of the Servicing Agreement is hereby deleted, and the form attached hereto as Attachment 4 is substituted in its place.
(x)
Exhibit 14 of the Servicing Agreement is hereby deleted, and the form attached hereto as Attachment 5 is substituted in its place.
Miscellaneous
8.
With respect to Subsection 14.01 of the Servicing Agreement, in the event that the Company is terminated pursuant to Subsection 14.01(x), the Assignor shall notify the Master Servicer of the termination fee agreed upon by the Assignor and the Company. In connection with the foregoing, the Securities Administrator shall pay such termination fee to the Company from funds of the trust pursuant to the Pooling and Servicing Agreement.
9.
All demands, notices and communications related to the Assigned Loans, the Servicing Agreement and this AAR 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:
(a)
In the case of Company,
IndyMac Bank, F.S.B.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Secondary Marketing – Transaction Management
(b)
In the case of Assignor,
DB Structured Products, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
(c)
In the case of Assignee,
Deutsche Alt-A Securities, Inc.
c/o Deutsche Bank Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
(d)
In the case of the Master Servicer,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - DBALT 2007-AR3
Telecopier: (000) 000-0000
10.
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 AAR Agreement.
11.
The Company hereby acknowledges that, Xxxxx Fargo Bank, N.A. has been appointed as the Master Servicer of the Assigned Loans pursuant to the Pooling and Servicing Agreement and, therefore, has the right to enforce all obligations of the Company under the Servicing Agreement. Such rights will include, without limitation, the right to terminate the Company under the Servicing Agreement upon the occurrence of an Event of Default thereunder, the right to receive all remittances required to be made by the Company under the Servicing Agreement, the right to receive all monthly reports and other data required to be delivered by the Company under the Servicing Agreement, the right to examine the books and records of the Company, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by the Company. The Company shall make all distributions under the Servicing Agreement to the Master Servicer by wire transfer of immediately available funds to:
Xxxxx Fargo Bank, N.A.
ABA # 000000000
Account Name: SAS Clearing
Account # 0000000000
FFC to: DBALT 2007-AR3 Account #00000000
The Company shall deliver all reports required to be delivered under the Servicing Agreement to the Assignee and the Master Servicer at their respective addresses set forth in Section 9 herein.
12.
This AAR Agreement shall be construed in accordance with the laws of the State of New York, without regard to conflicts of law principles (other than 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.
13.
No term or provision of this AAR Agreement may be waived or modified without the consent of the Insurer unless such waiver or modification is in writing and signed by the party against whom such waiver or modification is sought to be enforced.
14.
This AAR Agreement shall inure to the benefit of the successors and assigns of the parties hereto. Any entity into which Assignor, Assignee or Company may be merged or consolidated or which succeeds to the business or assets thereof shall, without the requirement for any further writing, be deemed Assignor, Assignee or Company, respectively, hereunder.
15.
This AAR Agreement shall survive the conveyance of the Assigned Loans, the assignment of the Servicing Agreement to the extent of the Assigned Loans by Assignor to Assignee and the termination of the Servicing Agreement.
16.
This AAR 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.
17.
In the event that any provision of this AAR Agreement conflicts with any provision of the Servicing Agreement with respect to the Assigned Loans, the terms of this AAR Agreement shall control.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as of the day and year first above written.
DB STRUCTURED PRODUCTS, INC. Name: Xxxxxx Xxxxxxxxx Title: Director | INDYMAC BANK, F.S.B. |
Name: Xxxx Xxxx Title: Vice President |
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DEUTSCHE ALT-A SECURITIES, INC. Assignee
Name: Xxxxxx Xxxxxxxxx Title: Director |
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By:Xxxx Xxxx Name: Xxxx Xxxx Title: Vice President |
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ACKNOWLEDGED AND AGREED TO:
XXXXX FARGO BANK, N.A.
Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ATTACHMENT 1
ASSIGNED LOANS
[ON FILE WITH THE SPONSOR]
ATTACHMENT 2
SERVICING AGREEMENT
[ON FILE]
ATTACHMENT 3 NEW EXHIBIT 11 FORM OF MONTHLY SERVICER’S REPORT | ||||
Exhibit 1: Standard File Layout - Master Servicing |
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Column Name | Description | Decimal | Format Comment | Max Size |
SER_INVESTOR_NBR | A value assigned by the Servicer to define a group of loans. |
| Text up to 10 digits | 20 |
LOAN_NBR | A unique identifier assigned to each loan by the investor. |
| Text up to 10 digits | 10 |
SERVICER_LOAN_NBR | A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR. |
| Text up to 10 digits | 10 |
BORROWER_NAME | The borrower name as received in the file. It is not separated by first and last name. |
| Maximum length of 30 (Last, First) | 30 |
SCHED_PAY_AMT | Scheduled monthly principal and scheduled interest payment that a borrower is expected to pay, P&I constant. | 2 | No commas(,) or dollar signs ($) | 11 |
NOTE_INT_RATE | The loan interest rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
NET_INT_RATE | The loan gross interest rate less the service fee rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
SERV_FEE_RATE | The servicer's fee rate for a loan as reported by the Servicer. | 4 | Max length of 6 | 6 |
SERV_FEE_AMT | The servicer's fee amount for a loan as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
NEW_PAY_AMT | The new loan payment amount as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
NEW_LOAN_RATE | The new loan rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
ARM_INDEX_RATE | The index the Servicer is using to calculate a forecasted rate. | 4 | Max length of 6 | 6 |
ACTL_BEG_PRIN_BAL | The borrower's actual principal balance at the beginning of the processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_END_PRIN_BAL | The borrower's actual principal balance at the end of the processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
BORR_NEXT_PAY_DUE_DATE | The date at the end of processing cycle that the borrower's next payment is due to the Servicer, as reported by Servicer. |
| MM/DD/YYYY | 10 |
SERV_CURT_AMT_1 | The first curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_1 | The curtailment date associated with the first curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_ AMT_1 | The curtailment interest on the first curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_AMT_2 | The second curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_2 | The curtailment date associated with the second curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_ AMT_2 | The curtailment interest on the second curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_AMT_3 | The third curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_3 | The curtailment date associated with the third curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_AMT_3 | The curtailment interest on the third curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
PIF_AMT | The loan "paid in full" amount as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
PIF_DATE | The paid in full date as reported by the Servicer. |
| MM/DD/YYYY | 10 |
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| Action Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution, 65=Repurchase,70=REO | 2 |
ACTION_CODE | The standard FNMA numeric code used to indicate the default/delinquent status of a particular loan. | |||
INT_ADJ_AMT | The amount of the interest adjustment as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
SOLDIER_SAILOR_ADJ_AMT | The Soldier and Sailor Adjustment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
NON_ADV_LOAN_AMT | The Non Recoverable Loan Amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
LOAN_LOSS_AMT | The amount the Servicer is passing as a loss, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_BEG_PRIN_BAL | The scheduled outstanding principal amount due at the beginning of the cycle date to be passed through to investors. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_END_PRIN_BAL | The scheduled principal balance due to investors at the end of a processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_PRIN_AMT | The scheduled principal amount as reported by the Servicer for the current cycle -- only applicable for Scheduled/Scheduled Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_NET_INT | The scheduled gross interest amount less the service fee amount for the current cycle as reported by the Servicer -- only applicable for Scheduled/Scheduled Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_PRIN_AMT | The actual principal amount collected by the Servicer for the current reporting cycle -- only applicable for Actual/Actual Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_NET_INT | The actual gross interest amount less the service fee amount for the current reporting cycle as reported by the Servicer -- only applicable for Actual/Actual Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
PREPAY_PENALTY_ AMT | The penalty amount received when a borrower prepays on his loan as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
PREPAY_PENALTY_ WAIVED | The prepayment penalty amount for the loan waived by the servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
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MOD_DATE | The Effective Payment Date of the Modification for the loan. |
| MM/DD/YYYY | 10 |
MOD_TYPE | The Modification Type. |
| Varchar - value can be alpha or numeric | 30 |
DELINQ_P&I_ADVANCE_AMT | The current outstanding principal and interest advances made by Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
Exhibit 2: 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 |
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LOAN_NBR | A unique identifier assigned to each loan by the originator. |
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CLIENT_NBR | Servicer Client Number |
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SERV_INVESTOR_NBR | Contains a unique number as assigned by an external servicer to identify a group of loans in their system. |
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BORROWER_FIRST_NAME | First Name of the Borrower. |
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BORROWER_LAST_NAME | Last name of the borrower. |
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PROP_ADDRESS | Street Name and Number of Property |
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PROP_STATE | The state where the property located. |
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PROP_ZIP | Zip code where the property is located. |
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BORR_NEXT_PAY_DUE_DATE | The date that the borrower's next payment is due to the servicer at the end of processing cycle, as reported by Servicer. |
| MM/DD/YYYY |
LOAN_TYPE | Loan Type (i.e. FHA, VA, Conv) |
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BANKRUPTCY_FILED_DATE | The date a particular bankruptcy claim was filed. |
| MM/DD/YYYY |
BANKRUPTCY_CHAPTER_CODE | The chapter under which the bankruptcy was filed. |
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BANKRUPTCY_CASE_NBR | The case number assigned by the court to the bankruptcy filing. |
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POST_PETITION_DUE_DATE | The payment due date once the bankruptcy has been approved by the courts |
| MM/DD/YYYY |
BANKRUPTCY_DCHRG_DISM_DATE | The Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged and/or a Motion For Relief Was Granted. |
| MM/DD/YYYY |
LOSS_MIT_APPR_DATE | The Date The Loss Mitigation Was Approved By The Servicer |
| MM/DD/YYYY |
LOSS_MIT_TYPE | The Type Of Loss Mitigation Approved For A Loan Such As; |
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LOSS_MIT_EST_COMP_DATE | The Date The Loss Mitigation /Plan Is Scheduled To End/Close |
| MM/DD/YYYY |
LOSS_MIT_ACT_COMP_DATE | The Date The Loss Mitigation Is Actually Completed |
| MM/DD/YYYY |
FRCLSR_APPROVED_DATE | The date DA Admin sends a letter to the servicer with instructions to begin foreclosure proceedings. |
| MM/DD/YYYY |
ATTORNEY_REFERRAL_DATE | Date File Was Referred To Attorney to Pursue Foreclosure |
| MM/DD/YYYY |
FIRST_LEGAL_DATE | Notice of 1st legal filed by an Attorney in a Foreclosure Action |
| MM/DD/YYYY |
FRCLSR_SALE_EXPECTED_DATE | The date by which a foreclosure sale is expected to occur. |
| MM/DD/YYYY |
FRCLSR_SALE_DATE | The actual date of the foreclosure sale. |
| MM/DD/YYYY |
FRCLSR_SALE_AMT | The amount a property sold for at the foreclosure sale. | 2 | No commas(,) or dollar signs ($) |
EVICTION_START_DATE | The date the servicer initiates eviction of the borrower. |
| MM/DD/YYYY |
EVICTION_COMPLETED_DATE | The date the court revokes legal possession of the property from the borrower. |
| MM/DD/YYYY |
LIST_PRICE | The price at which an REO property is marketed. | 2 | No commas(,) or dollar signs ($) |
LIST_DATE | The date an REO property is listed at a particular price. |
| MM/DD/YYYY |
OFFER_AMT | The dollar value of an offer for an REO property. | 2 | No commas(,) or dollar signs ($) |
OFFER_DATE_TIME | The date an offer is received by DA Admin or by the Servicer. |
| MM/DD/YYYY |
REO_CLOSING_DATE | The date the REO sale of the property is scheduled to close. |
| MM/DD/YYYY |
REO_ACTUAL_CLOSING_DATE | Actual Date Of REO Sale |
| MM/DD/YYYY |
OCCUPANT_CODE | Classification of how the property is occupied. |
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PROP_CONDITION_CODE | A code that indicates the condition of the property. |
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PROP_INSPECTION_DATE | The date a property inspection is performed. |
| MM/DD/YYYY |
APPRAISAL_DATE | The date the appraisal was done. |
| MM/DD/YYYY |
CURR_PROP_VAL | The current "as is" value of the property based on brokers price opinion or appraisal. | 2 |
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REPAIRED_PROP_VAL | The amount the property would be worth if repairs are completed pursuant to a broker's price opinion or appraisal. | 2 |
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If applicable: |
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DELINQ_STATUS_CODE | FNMA Code Describing Status of Loan |
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DELINQ_REASON_CODE | The circumstances which caused a borrower to stop paying on a loan. Code indicates the reason why the loan is in default for this cycle. |
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MI_CLAIM_FILED_DATE | Date Mortgage Insurance Claim Was Filed With Mortgage Insurance Company. |
| MM/DD/YYYY |
MI_CLAIM_AMT | Amount of Mortgage Insurance Claim Filed |
| No commas(,) or dollar signs ($) |
MI_CLAIM_PAID_DATE | Date Mortgage Insurance Company Disbursed Claim Payment |
| MM/DD/YYYY |
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 The Pool Insurer |
| MM/DD/YYYY |
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 |
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 2: Standard File Codes – Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as follows:
·
ASUM-
Approved Assumption
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BAP-
Borrower Assistance Program
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CO-
Charge Off
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DIL-
Deed-in-Lieu
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FFA-
Formal Forbearance Agreement
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MOD-
Loan Modification
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PRE-
Pre-Sale
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SS-
Short Sale
·
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:
·
Mortgagor
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Tenant
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Unknown
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Vacant
The Property Condition field should show the last reported condition of the property as follows:
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Damaged
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Excellent
·
Fair
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Gone
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Good
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Poor
·
Special Hazard
·
Unknown
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 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 3: 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:
* 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.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and WFB’s approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13.
The total of lines 1 through 12.
(iii)
Credits:
14-21.
Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* 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 gain, show the amount in parenthesis ( ).
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 cramdown 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)
(18)
Primary Mortgage Insurance / Gov’t Insurance
________________
(18a) HUD Part A
________________
(18b) HUD Part B
(19)
Pool Insurance Proceeds
________________ (19)
(20)
Proceeds from Sale of Acquired Property
________________ (20)
(21)
Other (itemize)
________________ (21)
_________________________________________
________________ (21)
Total Credits
$________________
(22)
Total Realized Loss (or Amount of Gain)
$________________
(23)
Escrow Disbursement Detail
Type (Tax /Ins.) | Date Paid | Period of Coverage | Total Paid | Base Amount | Penalties | Interest |
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ATTACHMENT 4
NEW EXHIBIT 13
FORM OF ANNUAL CERTIFICATION
Re:
The [ ] agreement dated as of [ ], 200[ ] (the “Agreement”), among [IDENTIFY PARTIES]
I am, ________________________________, the _______________________ of [NAME OF SERVICER] and, in such capacity, the officer in charge of the Servicer’s responsibility on Exhibit [ ] to the Agreement. I hereby certify to [the Owner], [the Depositor], and the [Master Servicer] [Securities Administrator] [Trustee], and their officers, with the knowledge and intent that they will rely upon this certification, that:
(1)
I have reviewed the servicer compliance statement of the Servicer provided in accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the report on assessment of the Servicer’s compliance with the servicing criteria set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing Assessment”), the registered public accounting firm’s attestation report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all other data, servicing reports, officer’s certificates and information relating to the performance of the Servicer under the terms of the Agreement during 200[ ] that were delivered to the [Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement (collectively, the “Servicer Servicing Information”);
(2)
Based on my knowledge, the reports and information comprising the Servicer Servicing Information, taken as a whole, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in the light of the circumstances under which such statements were made, not misleading as of the period covered by or the date of such reports or information or the date of this certification;
(3)
Based on my knowledge, all of the Servicer Servicing Information required to be provided by the Servicer under the Agreement has been provided to the [Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4)
I am responsible for reviewing the activities performed by the Servicer under the Agreement, and based on my knowledge and the compliance review conducted in preparing the Compliance Statement and except as disclosed in the Compliance Statement, the Servicing Assessment or the Attestation Report, the Servicer has fulfilled its obligations under the Agreement in all material respects; and
(5)
The Compliance Statement required to be delivered by the Servicer pursuant to the Agreement, and the Servicing Assessment and Attestation Report required to be provided by the Servicer and by any Subservicer or Subcontractor pursuant to the Agreement, have been provided to the [Depositor] [Master Servicer]. Any material instances of noncompliance described in such reports have been disclosed to the [Depositor] [Master Servicer]. Any material instance of noncompliance with the Servicing Criteria has been disclosed in such reports.
[SERVICER]
(Servicer)
By:
Name:
Title:
Date:
ATTACHMENT 5
NEW EXHIBIT 14 TO THE SERVICING AGREEMENT
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Seller][Name of Subservicer] shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria”
Reg AB Reference | Servicing Criteria | Applicable Servicing 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. |
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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 |
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1122(d)(2)(i) | Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements. | X |
1122(d)(2)(ii) | Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel. | X |
1122(d)(2)(iii) | Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements. | X |
1122(d)(2)(iv) | The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements. | X |
1122(d)(2)(v) | Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. | X |
1122(d)(2)(vi) | Unissued checks are safeguarded so as to prevent unauthorized access. | X |
1122(d)(2)(vii) | Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements. | X |
| Investor Remittances and Reporting |
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1122(d)(3)(i) | Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer. | X |
1122(d)(3)(ii) | Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements. | X |
1122(d)(3)(iii) | Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements. | X |
1122(d)(3)(iv) | Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements. | X |
Reg AB Reference | Servicing Criteria | Applicable Servicing Criteria |
| Pool Asset Administration |
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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. | X |
1122(d)(4)(xii) | Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the Servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission. | X |
1122(d)(4)(xiii) | Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements. | X |
1122(d)(4)(xiv) | Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements. | X |
1122(d)(4)(xv) | Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements. | X |
