AMENDMENT NUMBER THREE to the SERVICING AGREEMENT Dated as of December 20, 2005 between EMC MORTGAGE CORPORATION, as Owner and GMAC MORTGAGE CORPORATION, as Servicer
AMENDMENT
NUMBER THREE
to
the
Dated
as
of December 20, 2005
between
EMC
MORTGAGE CORPORATION,
as
Owner
and
GMAC
MORTGAGE CORPORATION,
as
Servicer
This
AMENDMENT NUMBER THREE (this “Amendment”) is made and entered into this
20th
day of
December, 2005, by and between EMC Mortgage Corporation, a Delaware corporation,
as owner (the “Owner”) and GMAC Mortgage Corporation, as servicer (the
“Servicer”) in connection with the Servicing Agreement, dated as of May 1, 2001,
between the above mentioned parties (the “Agreement”). This Amendment is made
pursuant to Section 11.02 of the Agreement.
RECITALS
WHEREAS,
the
parties hereto have entered into the Agreement;
WHEREAS,
the Agreement provides that the parties thereto may enter into an amendment
to
the Agreement;
WHEREAS,
the parties hereto desire to amend the Agreement as set forth in this Amendment;
and
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Agreement.
2. Article
I
of the Agreement is hereby amended effective as of the date hereof by adding
the
following definitions to Section 1.01:
Commission
or SEC:
The
Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction document.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Qualified
Correspondent:
Any
Person from which the Servicer purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Servicer and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Servicer, in accordance with underwriting guidelines designated by the
Servicer (“Designated Guidelines”) or guidelines that do not vary materially
from such Designated Guidelines; (ii) such Mortgage Loans were in fact
underwritten as described in clause (i) above and were acquired by the Servicer
within 180 days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Servicer
in
origination of mortgage loans of the same type as the Mortgage Loans for the
Servicer’s own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Servicer on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Servicer; and (iv) the Servicer employed, at the time such Mortgage Loans were
acquired by the Servicer, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit G for convenience of
reference only. In the event of a conflict or inconsistency between the terms
of
Exhibit G and the text of Item 1122(d) of Regulation AB, the text of Item
1122(d) of Regulation AB shall control (or those Servicing Criteria otherwise
mutually agreed to by the Owner, Servicer and any Person that will be
responsible for signing any Sarbanes Certification with respect to a
Securitization Transaction in response to evolving interpretations of Regulation
AB and incorporated into a revised Exhibit G).
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Servicer.
3. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new clause (m):
(m) As
of the
date of each Pass-Through Transfer, and except as has been otherwise disclosed
to the Owner, any Master Servicer and any Depositor: (1) the Servicer is not
aware and has not received notice that any default or servicing related
performance trigger has occurred as to any other securitization due to any
act
or failure to act of the Servicer; (2) no material noncompliance with applicable
servicing criteria as to any other securitization involving residential mortgage
loans involving the Servicer as servicer has been disclosed or reported by
the
Servicer; (3) the Servicer has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; (4) no material changes
to the Servicer’s servicing policies and procedures with respect to the
servicing function it will perform under this Agreement or any Reconstitution
Agreement has occurred in the preceding three years; (5) there are no aspects
of
the Servicer’s financial condition that could have a material adverse impact on
the performance by the Servicer of its servicing obligations hereunder; (6)
there are no legal proceedings pending, or known to be contemplated by
governmental authorities, against the Servicer that could be material to
investors in the securities issued in such Pass-Through Transfer; and (7) there
are no affiliations, relationships or transactions relating to the Servicer
of a
type that are described under Item 1119 of Regulation AB.
4. Article
IV of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 4.14:
Section
4.14 Financial
Statements.
Upon
request by the Purchaser, the Servicer shall provide its financial statements
of
its parent for the previous two fiscal years.
5. The
Agreement is hereby amended effective as of the date hereof by moving clauses
(a) through (m) of Article III to Section 3.01.
6. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Section 3.02:
Section
3.02 Updates.
(a) If
so
requested by the Owner or any Depositor on any date, the Servicer shall, within
five Business Days,
and in
no event later than seven Business Days
following such request, confirm in writing the accuracy of the representations
and warranties set forth in clause (m) of this Article III or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
(b) If
so
requested by the Owner or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer
to)
(i) notify the Owner, any Master Servicer and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against the Servicer
or any Subservicer, (B) any affiliations or relationships that develop following
the closing date of a Pass-Through Transfer between the Servicer or any
Subservicer and any of the parties specified in clause (7) of paragraph (m)
of
Section 3.01 (and any other parties identified in writing by the requesting
party) with respect to such Pass-Through Transfer, (C)
any
Event of Default under the terms of this Agreement or any Reconstitution
Agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Servicer, and (E) the Servicer’s entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Servicer’s
obligations under this Agreement or any Reconstitution Agreement and
(ii)
provide
to the Owner and any Depositor a description of such proceedings, affiliations
or relationships.
All
notification pursuant to this Section 3.02(b), other than those pursuant to
Section 3.02(b)(i)(A), should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Conduit Seller Approval Dept.
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxxxx@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 Section 3.01(b)(i)(A) should be sent to:
EMC
Mortgage Corporation
Two
Mac
Xxxxxx Xxxxx
000
Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Associate General Counsel for Loan Administration
Facsimile:
(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:
Conduit Seller Approval Dept.
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxxxx@xxxx.xxx
(c) As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, any Master Servicer and
any Depositor, at least fifteen (15) calendar days prior to the effective date
of such succession or appointment, (x) written notice to the Owner, any Master
Servicer and any Depositor of such succession or appointment and (y) in writing
and in form and substance reasonably satisfactory to the Owner, any Master
Servicer and such Depositor, all information reasonably requested by the Owner,
any Master Servicer or any Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
7. Article
IV of the Agreement is hereby amended effective as of the date hereof by adding
the following after the first sentence of Section 4.01:
In
addition, the Servicer shall furnish information regarding the borrower credit
files related to such Mortgage Loan to credit reporting agencies in compliance
with the provisions of the Fair Credit Reporting Act and the applicable
implementing regulations.
8. Article
IV of the Agreement is hereby amended effective as of the date hereof by
revising the first paragraph of Section 4.03 by adding the following after
the
first sentence:
In
determining the delinquency status of any Mortgage Loan, the Servicer will
use
delinquency recognition policies as utilized by the Servicer in connection
with
the servicing of mortgage loans on its own securitizations.
9. Article
V
of the Agreement is hereby amended effective as of the date hereof by deleting
Section 5.02 in its entirety and replacing it with the following:
Section
5.02 Statements
to the Owner.
The
Servicer shall furnish to the Owner an individual Mortgage Loan accounting
report (a “Report”), as of the last Business Day of each month, in the
Servicer's assigned loan number order to document Mortgage Loan payment activity
on an individual Mortgage Loan basis. With respect to each month, such Report
shall be received by the Owner (i) no later than the fifth Business Day of
the
following month of the related Remittance Date on a disk or tape or other
computer-readable format, in such format as may be mutually agreed upon by
both
the Owner and the Servicer, and (ii) no later than the tenth Business Day of
the
following month of the related Remittance Date in hard copy, which Report shall
contain the following:
(i) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any prepayment
penalties or premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 4.04);
(ii) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) with
respect to each Mortgage Loan, the amount of servicing compensation received
by
the Servicer during the prior distribution period;
(iv) the
Stated Principal Balance of each Mortgage Loan and the aggregate Stated
Principal Balance of all Mortgage Loans as of the first day of the distribution
period and the last day of the distribution period;
(v) with
respect to each Mortgage Loan, the current Mortgage Interest Rate;
(vi) with
respect to each Mortgage Loan, the aggregate amount of any Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Disposition Proceeds
received during the prior distribution period;
(vii) with
respect to each Mortgage Loan, the amount of any Prepayment Interest Shortfalls
paid by the Servicer in accordance with Section 4.04(viii) during the prior
distribution period;
(viii) with
respect to each Mortgage Loan, the Stated Principal Balance of each Mortgage
Loan (a) delinquent as grouped in the following intervals through final
liquidation of such Mortgage Loan: 30 to 59 days, 60 to 89 days, 90 days or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(ix) with
respect to each Mortgage Loan, and in the aggregate for all Mortgage Loans,
the
amount of any Monthly Advances made by the Servicer during the prior
distribution period;
(x) with
respect to each Mortgage Loan, the amount of any Servicing Advances made by
the
Servicer with respect to such Mortgage Loan, and the aggregate amount of
Servicing Advances for all Mortgage Loans during the prior distribution
period;
(xi) with
respect to each Mortgage Loan, a description of any Nonrecoverable Advances
made
by the Servicer with respect to such Mortgage Loan including the amount, terms
and general purpose of such Nonrecoverable Advances, and the aggregate amount
of
Nonrecoverable Advances for all Mortgage Loans during the prior distribution
period;
(xii) with
respect to any Mortgage Loan, a description of any material modifications,
extensions or waivers to the terms, fees, penalties or payments of such Mortgage
Loan during the prior distribution period or that have cumulatively become
material over time;
(xiii) with
respect to each Mortgage Loan, the Stated Principal Balance of any substitute
Mortgage Loan provided by the Servicer and the Stated Principal Balance of
any
Mortgage Loan that has been replaced by a substitute Mortgage Loan in accordance
with Section 3.03 herein;
(xiv) with
respect to each Mortgage Loan, the Stated Principal Balance of any Mortgage
Loan
that has been repurchased by the Servicer in accordance with Section 3.03
herein.
For
any
Mortgage Loan in a Pass-Through Transfer, the Servicer shall also furnish the
following items in the Report to the Master Servicer, provided that if these
items are included in the report to the Owner they need not be incorporated
in
the Report:
(i) the
beginning and ending balances of the Custodial Account and Escrow
Account;
(ii) with
respect to each Mortgage Loan, a description of any Monthly Advances, Servicing
Advances and Nonrecoverable Advances reimbursed to the Servicer with respect
to
such Mortgage Loan during the prior distribution period pursuant to Section
4.05, and the source of funds for such reimbursement, and the aggregate amount
of any Monthly Advances, Servicing Advances and Nonrecoverable Advances
reimbursed to the Servicer for all Mortgage Loans during the prior distribution
period pursuant to Section 4.05; and
(iii) a
description of any material breach of a representation or warranty set forth
in
Section 3.01 or Section 3.02 herein or of any other breach of a covenant or
condition contained herein and the status of any resolution of such
breach.
In
addition, the Servicer shall provide to the Owner such other information known
or available to the Servicer that is necessary in order to provide the
distribution and pool performance information as required under Item 1121 of
Regulation AB, as amended from time to time, as determined by the Owner in
its
reasonable discretion. Notwithstanding the foregoing, the Servicer shall be
under no obligation to provide information that the Owner deems required under
Regulation AB if (i) the Servicer does not reasonably believe that such
information is required under Regulation AB and (ii) the Servicer is not
providing such information for (A) its own securitizations, or (B) any third
party securitizations with mortgage loans serviced by the Servicer[, unless
the
Owner pays all reasonable actual costs incurred by the Servicer in connection
with the preparation and delivery of such information and the Servicer is given
reasonable time to establish the necessary systems and procedures to produce
such information; provided, however, that the costs incurred by the Servicer
in
connection with establishing the necessary systems and procedures will be split
pro rata with any other purchaser that makes a request for similar
information.
The
Servicer shall also provide a monthly report, in the form of Exhibit E hereto,
or such other form as is mutually acceptable to the Servicer, the Owner and
any
Master Servicer, Exhibit H or such other agreeable format with respect to
defaulted mortgage loans and Exhibit I, with respect to realized losses and
gains, with each such report.
The
Servicer shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
Owner pursuant to any applicable law with respect to the Mortgage Loans and
the
transactions contemplated hereby. In addition, the Servicer shall provide Owner
with such information concerning the Mortgage Loans as is necessary for Owner
to
prepare its federal income tax return as Owner may reasonably request from
time
to time.
In
addition, not more than sixty (60) days after the end of each calendar year,
the
Servicer shall furnish to each Person who was an Owner at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
10. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.04 in its entirety and replacing it with the
following:
Section
6.04 Annual
Statement as to Compliance; Annual Certification.
(a) The
Servicer will deliver to the Owner and any Master Servicer, using its best
efforts to deliver on March 1, but in no event later than March 15, of each
calendar year beginning in 2007, an Officers’ Certificate acceptable to the
Owner (an “Annual Statement of Compliance”) stating, as to each signatory
thereof, that (i) a review of the activities of the Servicer during the
preceding calendar year and of performance under this Agreement or other
applicable servicing agreement has been made under such officers’ supervision
and (ii) to the best of such officers’ knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Agreement or other
applicable servicing agreement in all material respects throughout such year,
or, if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status of cure provisions thereof. Such Annual Statement of Compliance shall
contain no restrictions or limitations on its use.
(b) With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
using its best efforts to deliver on March 1, but in no event later than March
15, of each calendar year beginning in 2007, an officer of the Servicer shall
execute and deliver an Officers’ Certificate (an “Annual Certification”) to the
Owner, any Master Servicer and any related Depositor for the benefit of each
such entity and such entity’s affiliates and the officers, directors and agents
of any such entity and such entity’s affiliates, in the form attached hereto as
Exhibit F.
In
the
event that the Servicer fails to timely comply with this Section 6.04 after
the
cure period set forth herein, commencing on March 15th of the related year,
the
Owner shall use its commercially reasonable efforts to obtain written or verbal
statements or assurances from the Commission, by March 30th of the related
year
(or such extension of time granted by the Commission so that it can review
the
facts surrounding any requests made by the Owner) that such failure to provide
the required Assessment of Compliance and Attestation Report on a timely basis,
and a one time additional failure by the Servicer to comply with this Section
6.04, will not result in any adverse effect on the Owner or its affiliates
with
respect to any Shelf Registration on Form S-3 of the Owner or any of its
affiliates. Any costs or expenses incurred by the Owner in obtaining such
statement or assurances from the Commission shall be reimbursed to the Owner
by
the Servicer. In the event that the Owner is unable to receive any such
assurances from the Commission after the use of such commercially reasonable
efforts by March 30th (or any extension period granted by the Commission) of
the
related year, such failure by the Servicer to comply with this Section 6.04
shall be deemed an Event of Default, automatically at such time, without notice
and without any cure period, and Owner may, in addition to whatever rights
the
Owner may have under Section 8.01, subject to the limitation expressed therein,
and at law or equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same, as provided in Section 9.01 . Such
termination shall be considered with cause pursuant to Section 10.01 of this
Agreement. This paragraph shall supersede any other provision in this Agreement
or any other agreement to the contrary.
Failure
to provide the Annual Statement of Compliance or Annual Certification will
be
treated as a failure of the Servicer to perform its duties under the Agreement
and will be subject to the indemnification provisions of Section 8.01, subject
to the limitation expressed therein, of the Agreement.
This
indemnification is understood by the parties hereto to cover any gross
negligence, bad faith or willful misconduct of the Servicer in connection with
its performance hereunder. For any indemnification from the Servicer to any
Master Servicer, the Servicer in no event will be liable for punitive or
consequential damages, regardless of the form of action, whether in contract,
tort or otherwise.
If
the
indemnification provided for therein is unavailable or insufficient to hold
harmless the Owner, each affiliate of the Owner, and each of the following
parties participating in a Pass-Through Transfer: each sponsor and issuing
entity; each Person (including, but not limited to, any Master Servicer, if
applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Pass-Through
Transfer, or for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to such Pass-Through Transfer;
each broker dealer acting as underwriter, placement agent or initial purchaser,
each Person who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the respective present and former directors, officers, employees, agents
and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), then the Servicer 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 Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall promptly
reimburse the Owner, any Depositor, as applicable, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Servicer, any Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
11. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.05 in its entirety and replacing it with the
following:
Section
6.05 [Reserved].
12. Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.09:
Section
6.09 Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Servicer shall service and administer, and shall
cause each subservicer to servicer or administer, the Mortgage Loans in
accordance with all applicable requirements of the Servicing
Criteria.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
the Servicer shall use its best efforts to deliver to the Owner or its designee,
any Master Servicer and any Depositor on March 1, but in no event later than
March 15 of each calendar year beginning in 2007 a report (an “Assessment of
Compliance”) reasonably satisfactory to the Owner, any Master Servicer and any
Depositor regarding the Servicer’s assessment of compliance with the Servicing
Criteria during the preceding calendar year as required by Rules 13a-18 and
15d-18 of the Exchange Act and Item 1122 of Regulation AB or as otherwise
required by the Master Servicer. Such report shall be addressed to the Owner
and
such Depositor and signed by an authorized officer of the Servicer, and shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit G hereto delivered to the Owner
concurrently with the execution of this Agreement.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
the Servicer shall use its best efforts to deliver to the Owner or its designee,
any Master Servicer and any Depositor on March 1, but in no event later than
March 15 of each calendar year beginning in 2007 a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the Servicer, as required by Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB or as otherwise
required by the Master Servicer, which Attestation Report must be made in
accordance with standards for attestation reports issued or adopted by the
Public Servicer Accounting Oversight Board.
The
Servicer shall cause each Subservicer, and each Subcontractor determined by
the
Servicer pursuant to Section 11.19 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Owner, any Master Servicer and any Depositor an assessment of compliance and
accountants’ attestation as and when provided in Sections 6.09. Each assessment
of compliance provided by a Subservicer shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
G
hereto delivered to the Owner concurrently with the execution of this Agreement
or, in the case of a Subservicer subsequently appointed as such, on or prior
to
the date of such appointment.
In
the
event that the Servicer fails to timely comply with this Section 6.09 after
the
cure period set forth herein, commencing on March 15th of the related year,
the
Owner shall use its commercially reasonable efforts to obtain written or verbal
statements or assurances from the Commission, by March 30th of the related
year
(or such extension of time granted by the Commission so that it can review
the
facts surrounding any requests made by the Owner) that such failure to provide
the required Assessment of Compliance and Attestation Report on a timely basis,
and a one time additional failure by the Servicer to comply with this Section
6.09, will not result in any adverse effect on the Owner or its affiliates
with
respect to any Shelf Registration on Form S-3 of the Owner or any of its
affiliates. Any costs or expenses incurred by the Owner in obtaining such
statement or assurances from the Commission shall be reimbursed to the Owner
by
the Servicer. In the event that the Owner is unable to receive any such
assurances from the Commission after the use of such commercially reasonable
efforts by March 30th (or any extension period granted by the Commission) of
the
related year, such failure by the Servicer to comply with this Section 6.09
shall be deemed an Event of Default, automatically at such time, without notice
and without any cure period, and Owner may, in addition to whatever rights
the
Owner may have under Section 8.01, subject to the limitation expressed therein,
and at law or equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same, as provided in Section 9.01 . Such
termination shall be considered with cause pursuant to Section 10.01 of this
Agreement. This paragraph shall supersede any other provision in this Agreement
or any other agreement to the contrary.
Failure
to provide the Assessment of Compliance or Attestation Report will be treated
as
a failure of the Servicer to perform its duties under the Agreement and will
be
subject to the indemnification provisions of Section 8.01, subject to the
limitation expressed therein, of the Agreement. This indemnification is
understood by the parties hereto to cover any gross negligence bad faith or
willful misconduct of the Servicer in connection with its performance hereunder.
For any indemnification from the Servicer to any Master Servicer, the Servicer
in no event will be liable for punitive or consequential damages, regardless
of
the form of action, whether in contract, tort or otherwise.
If
the
indemnification provided for therein is unavailable or insufficient to hold
harmless the Owner, each affiliate of the Owner, and each of the following
parties participating in a Pass-Through Transfer: each sponsor and issuing
entity; each Person (including, but not limited to, any Master Servicer, if
applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Pass-Through
Transfer, or for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to such Pass-Through Transfer;
each broker dealer acting as underwriter, placement agent or initial purchaser,
each Person who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the respective present and former directors, officers, employees, agents
and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), then the Servicer 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 Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall promptly
reimburse the Owner, any Depositor, as applicable, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Servicer, any Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
13. Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.10:
Section
6.10 Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that a purpose of Section 3.01(m), 4.14,
Sections 5.02, 6.04, 6.09 and 10.02 of this Agreement is to facilitate
compliance by the Owner and any Depositor with the provisions of Regulation
AB
and related rules and regulations of the Commission. None of the Owner, any
Master Servicer or any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Owner or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Pass-Through Transfer, the Servicer shall
cooperate fully with the Owner to deliver to the Owner (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Owner or any Depositor to permit the Owner or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Servicer, any Subservicer, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Owner or any Depositor to be necessary in order
to
effect such compliance.
Notwithstanding
anything to the contrary herein, the Servicer shall be under no obligation
to
provide information that the Owner deems required under Regulation AB if (i)
the
Servicer does not reasonably believe that such information is required under
Regulation AB and (ii) the Servicer is not providing such information for its
own securitizations unless the Owner pays all reasonable costs incurred by
the
Servicer in connection with the preparation and delivery of such information
and
the Servicer is given reasonable time to establish the necessary systems and
procedures to produce such information; provided, however, that the costs
incurred by the Servicer in connection with establishing the necessary systems
and procedures will be split pro rata with any other purchaser that makes a
request for similar information.
14. Article
IX of the Agreement is hereby amended effective as of the date hereof by
deleting the first sentence of the last paragraph of Section 9.01 and replacing
it with the following (new text underlined):
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Owner, by notice in writing to the Servicer (or
as
otherwise stated herein, in which case, automatically and without
notice)
may, in
addition to whatever rights the Owner may have under Section 8.01, subject
to
the limitation expressed therein, and at law or equity to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Servicer (and
if
the Servicer 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)
under
this Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. On or after the receipt by the Servicer
of such written notice, all authority and power of the Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the successor appointed pursuant to Section 11.01. Upon
written request from the Owner, the Servicer shall prepare, execute and deliver,
any and all documents and other instruments, place in such successor's
possession all Servicing Files, and do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise, at the Servicer's sole expense.
The
Servicer agrees to cooperate with the Owner and such successor in effecting
the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans or any REO Property.
15. Article
IX of the Agreement is hereby amended effective as of the date hereof by adding
the following at the end of the last paragraph of Section 9.01:
The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a Master Servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer and
the
transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Owner or any
Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive
relief.
16. Article
X
of the Agreement is hereby amended effective as of the date hereof by restating
Section 10.02 in its entirety as follows:
Section
10.02. Cooperation
of Servicer with a Reconstitution.
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Owner’s sole option, the Owner may effect a sale
(each, a “Reconstitution”) of some or all of the Mortgage Loans then subject to
this Agreement, without recourse, to:
(1) one
or
more third party purchasers in one or more in whole loan transfers (each, a
“Whole Loan Transfer”); or
(2) one
or
more trusts or other entities to be formed as part of one or more Pass-Through
Transfers.
With
respect to each Whole Loan Transfer or Pass-Through Transfer, as the case may
be, the
Servicer shall (i) following request by the Owner or any Depositor, use best
efforts to provide within five, and in no event later than seven Business Days
the Owner and such Depositor (or, as applicable, cause each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Owner and such Depositor, the information and materials specified in paragraphs
(a), (b), (c) and (d) of this Section, and (ii) as promptly as practicable
following notice to or discovery by the Servicer, provide to the Owner and
any
Depositor (in writing and in form and substance reasonably satisfactory to
the
Owner and such Depositor) the information specified in paragraph (d) of this
Section.
(a) If
so
requested by the Owner or any Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
clause (a), a “Servicer”), as is requested for the purpose of compliance with
Item 1108 of Regulation AB. Such information shall include, at a
minimum:
(1) the
Servicer’s form of organization;
(2) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Owner or any Depositor,
to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(i) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(ii) the
extent of outsourcing the Servicer utilizes;
(iii) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(iv) whether
the Servicer has 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; and
(v) such
other information as the Owner or any Depositor may reasonably request for
the
purpose of compliance with Item 1108(b)(2) of Regulation AB;
(3) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(4) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Servicer
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(5) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(6) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(7) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(8) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(b) If
so
requested by the Owner or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer
to)
(i) notify the Servicer, any Master Servicer and any Depositor in writing of
(A)
any material litigation or governmental proceedings involving the Company or
any
Subservicer, (B) any affiliations or relationships that develop following the
closing date of a Securitization Transaction between the Owner or any
Subservicer and any of the parties specified in clause (D) of paragraph (a)
of
this Section (and any other parties identified in writing by the requesting
party) with respect to such Securitization Transaction, (C) any Event of Default
under the terms of this Agreement or any Reconstitution Agreement, (D) any
merger, consolidation or sale of substantially all of the assets of the Owner,
and (E) the Owner’s entry into an agreement with a Subservicer to perform or
assist in the performance of any of the Owner’s obligations under this Agreement
or any Reconstitution Agreement and (ii) provide to the Servicer and any
Depositor a description of such proceedings, affiliations or
relationships.
As
a
condition to the succession to the Owner or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Owner or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Owner or any Subservicer,
the
Owner shall provide to the Servicer, any Master Servicer, and any Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Servicer and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Servicer and such Depositor, all information
reasonably requested by the Servicer or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities;
In
addition to such information as the Owner, as servicer, is obligated to provide
pursuant to other provisions of this Agreement, not later than ten days prior
to
the deadline for the filing of any distribution report on Form 10-D in respect
of any Securitization Transaction that includes any of the Mortgage Loans
serviced by the Owner or any Subservicer, the Owner or such Subservicer, as
applicable, shall, to the extent the Owner or such Subservicer has knowledge,
provide to the party responsible for filing such report (including, if
applicable, the Master Servicer) notice of the occurrence of any of the
following events along with all information, data, and materials related thereto
as may be required to be included in the related distribution report on Form
10-D (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB);
and
The
Owner
shall provide to the Servicer, any Master Servicer and any Depositor, evidence
of the authorization of the person signing any certification or statement,
copies or other evidence of Fidelity Bond Insurance and Errors and Omission
Insurance policy, financial information and reports, and such other information
related to the Owner or any Subservicer or the Owner or such Subservicer’s
performance hereunder.
Notwithstanding
the foregoing, the Servicer shall be under no obligation to provide information
that the Owner deems required under Regulation AB if (i) the Servicer does
not
reasonably believe that such information is required under Regulation AB and
(ii) the Servicer is not providing such information for (A) its own
securitizations, or (B) any third party securitizations with mortgage loans
serviced by the Servicer[, unless the Owner pays all reasonable actual costs
incurred by the Servicer in connection with the preparation and delivery of
such
information and the Servicer is given reasonable time to establish the necessary
systems and procedures to produce such information; provided, however, that
the
costs incurred by the Servicer in connection with establishing the necessary
systems and procedures will be split pro rata with any other purchaser that
makes a request for similar information..
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to, and serviced in accordance with the terms of, this Agreement and
the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
17. Article
XI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 11.16:
Section
11.16. Use
of
Subservicers and Subcontractors.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (d) of this Section.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Owner to the
utilization of any subservicer. The Servicer shall cause any Subservicer used
by
the Servicer (or by any Subservicer) for the benefit of the Owner and any
Depositor to comply with the provisions of this Section and with Sections
3.01(m), 4.14, 6.04, 6.09 and 10.02 of this Agreement to the same extent as
if
such Subservicer were the Servicer, and to provide the information required
with
respect to such Subservicer under Section 3.02(b) of this Agreement. The
Servicer shall be responsible for obtaining from each Subservicer and delivering
to the Owner, any Master Servicer and any Depositor any Annual Statement of
Compliance required to be delivered by such Subservicer under Section 6.04(a),
any Assessment of Compliance and Attestation Report required to be delivered
by
such Subservicer under Section 6.09 and any Annual Certification required under
Section 6.04(b) as and when required to be delivered.
(c) The
Servicer shall promptly upon request provide to the Owner, any Master Servicer
and any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Owner, any Master
Servicer and such Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Subservicer, specifying (i) the identity of
each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
(d) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 6.09 and 10.02 of this Agreement
to
the same extent as if such Subcontractor were the Servicer. The Servicer shall
be responsible for obtaining from each Subcontractor and delivering to the
Owner
and any Depositor any Assessment of Compliance and Attestation Report and the
other certificates required to be delivered by such Subservicer and such
Subcontractor under Section 6.09, in each case as and when required to be
delivered.
18. Article
XI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 11.17:
For
purposes of this Agreement, and with respect to any Mortgage Loan in a
Pass-Through Transfer, the related Master Servicer shall be considered a third
party beneficiary to this Agreement, entitled to all the rights and benefits
hereof as if it were a direct party to this Agreement, with respect to such
Mortgage Loans.
19. The
Agreement is hereby amended effective as of the date hereof by deleting Exhibit
E in its entirety and replacing it with the following:
EXHIBIT
E
REPORTING
DATA FOR MONTHLY REPORT
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
Text
up to 10 digits
|
20
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
Text
up to 10 digits
|
10
|
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
Text
up to 10 digits
|
10
|
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
Maximum
length of 30 (Last, First)
|
30
|
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
MM/DD/YYYY
|
10
|
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
MM/DD/YYYY
|
10
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|||
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
MM/DD/YYYY
|
10
|
|
|
MOD_TYPE
|
The
Modification Type.
|
Varchar
- value can be alpha or numeric
|
30
|
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
20. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit F:
EXHIBIT
F
FORM
OF
SERVICER CERTIFICATION
Re: The
[ ]
agreement dated as of [ l,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF SERVICER]
(the “Company”), certify to [the Purchaser], [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:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Company Servicing
Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
I
am
responsible for reviewing the activities performed by the Company as 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
Company has fulfilled its obligations under the Agreement in all material
respects; and
The
Compliance Statement required to be delivered by the Company pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and 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.
21. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit G:
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
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.
|
|
|
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.
|
|
|
|
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.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
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.
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
|
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.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
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.
|
|
|
|
|
|
[NAME
OF
COMPANY] [NAME OF SUBSERVICER]
Date: _________________________
By: _________________________
Name:
Title:
22. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit H:
EXHIBIT
H
REPORTING
DATA FOR DEFAULTED LOANS
Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment 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)
|
|
|
|
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.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy 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;
|
||
|
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.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With 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
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-
Charge Off
|
| · |
DIL-
Deed-in-Lieu
|
| · |
FFA-
Formal Forbearance Agreement
|
| · |
MOD-
Loan Modification
|
| · |
PRE-
Pre-Sale
|
| · |
SS-
Short Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
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
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
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
|
23. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit I:
EXHIBIT
I
REPORTING
DATA FOR REALIZED LOSSES AND GAINS
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.
1.
2. 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.
3. 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 ( ).
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
|
24. Except
as
amended above, the Agreement shall continue to be in full force and effect
in
accordance with its terms.
25. This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts and of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the following parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
EMC
MORTGAGE CORPORATION,
as
Owner
By:
Name:
Title:
GMAC
MORTGAGE CORPORATION,
as
Servicer
By:
Name:
Title:
