GMAC Mortgage Corporation, as HELOC Back-Up Servicer, AMERICAN HOME MORTGAGE INVESTMENT TRUST 2006-2, as Issuing Entity DEUTSCHE BANK TRUST COMPANY AMERICAS, as Indenture Trustee AMERICAN HOME MORTGAGE ACCEPTANCE, INC. as Sponsor and AMERICAN HOME...
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GMAC
Mortgage Corporation,
as
HELOC Back-Up Servicer,
as
Issuing Entity
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Indenture Trustee
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
Sponsor
and
AMERICAN
HOME MORTGAGE ACCEPTANCE, INC.
as
HELOC Servicer
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Dated
as of June 30, 2006
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HELOC
Mortgage Loans
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TABLE
OF
CONTENTS
Definitions
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Section
1.01
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Definitions
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Section
1.02
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Other
Definitional Provisions.
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Section
1.03
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Interest
Calculations
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ARTICLE
II
Representations
and Warranties
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Section
2.01
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Representations
and Warranties Regarding the HELOC Servicer
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Section
2.02
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Existence
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Section
2.03
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Enforcement
of Representations and Warranties
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ARTICLE
III
Administration
and Servicing of HELOC Mortgage Loans
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Section
3.01
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HELOC
Servicer to Service
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Section
3.02
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HELOC
Subservicing Agreements Between HELOC Servicer and HELOC
Subservicers
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Section
3.03
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Successor
HELOC Subservicers
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Section
3.04
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Liability
of the HELOC Servicer
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Section
3.05
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Assumption
or Termination of HELOC Subservicing Agreements by HELOC Back-Up
Servicer
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Section
3.06
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Collection
of Mortgage Loan Payments
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Section
3.07
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Withdrawals
from the Collection Account
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Section
3.08
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Collection
of Taxes Assessments and Similar Items.
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Section
3.09
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Access
to Certain Documentation and Information Regarding the HELOC Mortgage
Loans
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Section
3.10
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Reserved.
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Section
3.11
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Maintenance
of Hazard Insurance and Fidelity Coverage
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Section
3.12
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Due-on-Sale
Clauses; Assumption Agreements
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Section
3.13
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Realization
Upon Defaulted HELOC Mortgage Loans
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Section
3.14
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Indenture
Trustee to Cooperate; Release of Mortgage Files
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Section
3.15
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Servicing
Compensation
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Section
3.16
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Reserved.
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Section
3.17
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Reserved.
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Section
3.18
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Optional
Purchase of Defaulted Mortgage Loans
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Section
3.19
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Information
Required by the Internal Revenue Service Generally and Reports of
Foreclosures and Abandonments of Mortgaged Property
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Section
3.20
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Fair
Credit Reporting Act
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Section
3.21
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Reserved.
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Section
3.22
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Transfers
of HELOC Mortgage Loans at Election of the Sponsor
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ARTICLE
IV
Servicing
Certificate
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Section
4.01
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Remittance
Reports
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Section
4.02
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Reserved.
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Section
4.03
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Reserved.
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Section
4.04
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Reserved.
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Section
4.05
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Reserved.
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Section
4.06
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HELOC
Servicer Compliance Statement.
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Section
4.07
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Report
on Assessments of Compliance and Attestation.
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Section
4.08
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Attestation
Reports.
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Section
4.09
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Annual
Certification.
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Section
4.10
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Intention
of the Parties and Interpretation.
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Section
4.11 Indemnification.
ARTICLE
V
The
HELOC
Servicer
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Section
5.01
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Liability
of the HELOC Servicer
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Section
5.02
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Merger
or Consolidation of or Assumption of the Obligations of the HELOC
Servicer
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Section
5.03
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Limitation
on Liability of the HELOC Servicer and Others
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Section
5.04
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HELOC
Servicer Not to Resign
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Section
5.05
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Delegation
of Duties
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Section
5.06
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Indemnification
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Section
5.07
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Duties
of the HELOC Servicer With Respect to the Indenture
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Section
5.08
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Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
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ARTICLE
VI
Default
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Section
6.01
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Servicing
Default
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Section
6.02
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HELOC
Back-Up Servicer to Act; Appointment of Successor
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Section
6.03
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Reserved.
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Section
6.04
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Waiver
of Defaults
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ARTICLE
VII
Miscellaneous
Provisions
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Section
7.01
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Amendment
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Section
7.02
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GOVERNING
LAW
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Section
7.03
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Notices
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Section
7.04
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Severability
of Provisions
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Section
7.05
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Third-Party
Beneficiaries
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Section
7.06
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Counterparts
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Section
7.07
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Effect
of Headings and Table of Contents
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Section
7.08
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Termination
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Section
7.09
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No
Petition
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Section
7.10
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No
Recourse
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Section
7.11
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Consent
to Jurisdiction
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Section
7.12
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Certain
Terms Concerning Indenture Trustee.
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Section
7.13
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Third
Party Beneficiary.
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EXHIBIT
A
- HELOC MORTGAGE LOAN SCHEDULE
EXHIBIT
B
- FORM OF REQUEST FOR RELEASE
EXHIBIT
C-1 - FORM OF CERTIFICATION TO BE PROVIDED BY THE HELOC SERVICER
EXHIBIT
D
- LOAN LEVEL FORMAT FOR TAPE INPUT
EXHIBIT
E
- REPORTING DATA FOR DEFAULTED LOANS
EXHIBIT
F
- CALCULATION OF REALIZED LOSS/GAIN FORM 332 - INSTRUCTION SHEET
EXHIBIT
G
- SERVICING CRITERIA
This
HELOC Servicing Agreement, dated as of June 30, 2006, among GMAC Mortgage
Corporation, as HELOC Back-Up Servicer (“HELOC Back-Up Servicer”), American Home
Mortgage Investment Trust 2006-2, as Issuing Entity (the Issuing Entity”),
American Home Mortgage Acceptance, Inc. as Sponsor (the “Sponsor”), Deutsche
Bank Trust Company Americas, as Indenture Trustee (the AIndenture
Trustee”) and American Home Mortgage Acceptance, Inc., as HELOC Servicer (“HELOC
Servicer”).
W
I T
N E S S E T H T H A T :
WHEREAS,
pursuant to the terms of the Mortgage Loan Purchase Agreement, Bear ▇▇▇▇▇▇▇
Asset Backed Securities I LLC (the “Company” or “Depositor”) will acquire the
Mortgage Loans;
WHEREAS,
the Company will create American Home Mortgage Investment Trust 2006-2, a
Delaware statutory trust (the “Issuing Entity”), and will transfer the Mortgage
Loans to the Issuing Entity;
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement dated as of
June 30, 2006 (“Trust Agreement”) among the Company, as depositor, Wilmington
Trust Company, as owner trustee (“Owner Trustee”) and ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the “Securities Administrator”), the Company will
convey the Mortgage Loans to the Issuing Entity in exchange for the Certificates
(as defined below);
WHEREAS,
pursuant to the terms of the Trust Agreement, the Issuing Entity will issue
and
transfer to or at the direction of the Depositor, the Trust Certificates, 2006-2
(“Certificates”);
WHEREAS,
pursuant to the terms of an Indenture dated as of June 30, 2006 (“Indenture”)
among the Issuing Entity, the Securities Administrator and the Indenture
Trustee, the Issuing Entity will pledge the Mortgage Loans and issue and
transfer to or at the direction of the Purchaser the Mortgage-Backed Notes,
Series 2006-2;
WHEREAS,
pursuant to the terms of the HELOC Back-Up Servicing Agreement, the HELOC
Back-Up Servicer will back-up service the HELOC Mortgage Loans set forth on
the
HELOC Mortgage Loan Schedule for the benefit of the holders of the Class V-A
Notes, the Issuing Entity, the Credit Enhancer and the Indenture Trustee;
and
WHEREAS,
pursuant to the terms of this HELOC Servicing Agreement and Article XII of
the
Indenture, the HELOC Servicer shall service the HELOC Mortgage Loans for the
benefit of the HELOC Back-Up Servicer, the Issuing Entity, the Indenture
Trustee, the Credit Enhancer and the holders of the Class V-A
Notes;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
For all
purposes of this HELOC Servicing Agreement, except as otherwise expressly
provided herein or unless the context otherwise requires, capitalized terms
not
otherwise defined herein shall have the meanings assigned to such terms in
the
Definitions contained in Appendix A to the Indenture which is incorporated
by
reference herein. All other capitalized terms used herein shall have the
meanings specified herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this HELOC Servicing Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As
used
in this HELOC Servicing Agreement and in any certificate or other document
made
or delivered pursuant hereto or thereto, accounting terms not defined in this
HELOC Servicing Agreement or in any such certificate or other document, and
accounting terms partly defined in this HELOC Servicing Agreement or in any
such
certificate or other document, to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
HELOC
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this HELOC Servicing Agreement or
in
any such certificate or other document shall control.
(c) The
words
Ahereof,”
Aherein,”
Ahereunder”
and words of similar import when used in this HELOC Servicing Agreement shall
refer to this HELOC Servicing Agreement as a whole and not to any particular
provision of this HELOC Servicing Agreement; Section and Exhibit references
contained in this HELOC Servicing Agreement are references to Sections and
Exhibits in or to this HELOC Servicing Agreement unless otherwise specified;
and
the term Aincluding”
shall mean Aincluding
without limitation”.
(d) The
definitions contained in this HELOC Servicing Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well
as the feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
Section
1.03 Interest
Calculations.
All
calculations of interest hereunder that are made in respect of the Stated
Principal Balance of a HELOC Mortgage Loan shall be made on the basis of a
365/366 day year and the actual number of days elapsed.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Representations
and Warranties Regarding the HELOC Servicer.
The
HELOC Servicer represents and warrants to the HELOC Back-Up Servicer, the
Issuing Entity, the Indenture Trustee and the Credit Enhancer,
that:
(i) The
HELOC
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and has the corporate power to own
its
assets and to transact the business in which it is currently engaged. The HELOC
Servicer is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the HELOC Servicer
or
the validity or enforceability of the HELOC Mortgage Loans;
(ii) The
HELOC
Servicer has the power and authority to make, execute, deliver and perform
this
HELOC Servicing Agreement and all of the transactions contemplated under this
HELOC Servicing Agreement, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this HELOC Servicing
Agreement. When executed and delivered, this HELOC Servicing Agreement will
constitute the legal, valid and binding obligation of the HELOC Servicer
enforceable in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally and by availability of equitable
remedies;
(iii) The
HELOC
Servicer is not required to obtain the consent of any other Person or any
consent, license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this HELOC
Servicing Agreement, except for such consent, license, approval or
authorization, or registration or declaration, as shall have been obtained
or
filed, as the case may be;
(iv) The
execution and delivery of this HELOC Servicing Agreement and the performance
of
the transactions contemplated hereby by the HELOC Servicer will not violate
any
provision of any existing law or regulation or any order or decree of any court
applicable to the HELOC Servicer or any provision of the charter or bylaws
of
the HELOC Servicer, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the HELOC Servicer is a party or by which
the HELOC Servicer may be bound;
(v) No
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending (other than litigation with respect
to
which pleadings or documents have been filed with a court, but not served on
the
HELOC Servicer), or to the knowledge of the HELOC Servicer threatened, against
the HELOC Servicer or any of its properties or with respect to this HELOC
Servicing Agreement or the Class V-A Notes or the Certificates which, to the
knowledge of the HELOC Servicer, has a reasonable likelihood of resulting in
a
material adverse effect on the transactions contemplated by this HELOC Servicing
Agreement; and
(vi) The
HELOC
Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the HELOC Mortgage Loans that are registered with MERS.
The
foregoing representations and warranties shall survive any termination of the
HELOC Servicer hereunder.
Section
2.02 Existence.
The
Issuing Entity will keep in full effect its existence, rights and franchises
as
a statutory trust under the laws of the State of Delaware (unless it becomes,
or
any successor Issuing Entity hereunder is or becomes, organized under the laws
of any other state or of the United States of America, in which case the Issuing
Entity will keep in full effect its existence, rights and franchises under
the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this HELOC Servicing
Agreement.
Section
2.03 Enforcement
of Representations and Warranties.
The
Indenture Trustee, as pledgee of the Mortgage Loans shall enforce the
representations and warranties and related obligations for breaches thereof
of
the Sponsor pursuant to the Mortgage Loan Purchase Agreement. Upon the discovery
by the Sponsor, the HELOC Servicer, the Indenture Trustee, the Credit Enhancer
or the Company of a breach of any of the representations and warranties made
in
the Mortgage Loan Purchase Agreement in respect of any HELOC Mortgage Loan
which
materially and adversely affects the interests of the Class V-A Noteholders,
the
Credit Enhancer or the Certificateholders, the party discovering the same shall
give prompt written notice to the other parties. The Indenture Trustee shall
promptly notify the Sponsor and request that, pursuant to the terms of the
Mortgage Loan Purchase Agreement, the Sponsor either (i) cure such breach in
all
material respects or (ii) purchase such HELOC Mortgage Loan, in accordance
with
the Mortgage Loan Purchase Agreement; provided that the Sponsor shall, subject
to the conditions set forth in the Mortgage Loan Purchase Agreement, have the
option to substitute an Eligible Substitute Mortgage Loan or Eligible Substitute
Mortgage Loans for such HELOC Mortgage Loan upon delivery of an Officer’s
Certificate to the Indenture Trustee stating that such Eligible Substitute
Mortgage Loan satisfies the definition of Eligible Substitute Mortgage Loan
set
forth in Appendix A to the Indenture and that the Substitution Adjustment
Amount, if any, has been deposited into the Collection Account. Monthly Payments
due with respect to Eligible Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Estate and will be retained by
the
HELOC Servicer and remitted by the HELOC Servicer to the Sponsor on the next
succeeding Payment Date. For the month of substitution, distributions to the
Payment Account pursuant to this Agreement will include the Monthly Payment
due
on a Deleted Mortgage Loan for such month and thereafter the Sponsor shall
be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The HELOC Servicer shall amend or cause to be amended the HELOC Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the related Eligible Substitute Mortgage Loan and the HELOC
Servicer shall promptly deliver the amended HELOC Mortgage Loan Schedule to
the
HELOC Back-Up Servicer, the Securities Administrator, Owner Trustee, the Credit
Enhancer and Indenture Trustee.
In
connection with the substitution of one or more Eligible Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the HELOC Servicer will determine
the amount (such amount, a ASubstitution
Adjustment Amount@),
if
any, by which the aggregate Stated Principal Balance of all such Eligible
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate principal balance of all such Deleted Mortgage Loans (after
application of the principal portion of the Monthly Payments due on such Deleted
Mortgage Loans in the month of substitution). The Sponsor shall pay the
Substitution Adjustment Amount to the HELOC Servicer and the HELOC Servicer
shall deposit such Substitution Adjustment Amount into the Collection Account
upon receipt.
In
connection with any repurchase or substitution of a Mortgage Loan pursuant
to
this Section 2.03, the Sponsor shall furnish to the Securities Administrator
and
the Indenture Trustee an officer’s certificate, signed by a duly authorized
officer of the Sponsor to the effect that such repurchase or substitution has
been made in accordance with the terms and conditions of this Servicing
Agreement and that all conditions precedent to such repurchase or substitution
have been satisfied, including the delivery to the Securities Administrator
of
the Purchase Price or Substitution Adjustment Amount, as applicable, for deposit
into the Certificate Distribution Account, together with copies of any Opinion
of Counsel required to be delivered pursuant to this Agreement and the related
Request for Release. Upon receipt of such documentation, the Securities
Administrator shall approve such repurchase or substitution, as applicable,
which approval shall be based solely on the Securities Administrator’s receipt
of such documentation and deposits and of which the Indenture Trustee need
take
no notice or action in connection therewith.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF HELOC MORTGAGE LOANS
Section
3.01 HELOC
Servicer to Service.
(a)
The
HELOC Servicer shall service, or take such actions as are necessary to ensure,
the servicing and administration of the HELOC Mortgage Loans and any REO
Property in accordance with this HELOC Servicing Agreement and its normal
servicing practices, which generally shall conform to the standards of an
institution prudently servicing home equity line of credit mortgage loans for
its own account and shall have full authority to do anything it reasonably
deems
appropriate or desirable in connection with such servicing and administration.
The HELOC Servicer may perform its responsibilities relating to servicing
through other agents or independent contractors, but shall not thereby be
released from any of its responsibilities for the servicing and administration
of the HELOC Mortgage Loans. The authority of the HELOC Servicer, in its
capacity as HELOC Servicer, and any HELOC Subservicer acting on its behalf,
shall include, without limitation, the power on behalf of the Issuing Entity
and
the Indenture Trustee to (i) consult with and advise any HELOC Subservicer
regarding administration of a related HELOC Mortgage Loan, (ii) approve any
recommendation by a HELOC Subservicer to foreclose on a related HELOC Mortgage
Loan, (iii) supervise the filing and collection of insurance claims and take
or
cause to be taken such actions on behalf of the insured Person thereunder as
shall be reasonably necessary to prevent the denial of coverage thereunder,
and
(iv) effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing a related HELOC Mortgage Loan, including the
employment of attorneys, the institution of legal proceedings, the collection
of
deficiency judgments, acceptance of compromise proposals and any other matter
pertaining to a delinquent HELOC Mortgage Loan. The authority of the HELOC
Servicer shall include, in addition, the power to (i) execute and deliver
customary consents or waivers and other instruments and documents, (ii) consent
to transfer of any related Mortgaged Property and assumptions of the related
Mortgage Notes (in the manner provided in this HELOC Servicing Agreement) and
(iii) collect any Insurance Proceeds and Liquidation Proceeds. Without limiting
the generality of the foregoing, the HELOC Servicer and any HELOC Subservicer
acting on its behalf may, and is hereby authorized, and empowered by the
Indenture Trustee, to execute and deliver any instruments of satisfaction,
cancellation, partial or full release, discharge and all other comparable
instruments, with respect to the related HELOC Mortgage Loans, the insurance
policies and accounts related thereto, and the Mortgaged Properties. The HELOC
Servicer may exercise this power in its own name or in the name of a HELOC
Subservicer.
Notwithstanding
the foregoing or anything else to the contrary in this HELOC Servicing
Agreement, for so long as a Servicing Default or HELOC Servicer Termination
Event is not in effect as provided in Section 6.01 herein, the responsibilities
of the HELOC Back-Up Servicer shall be limited to review of the reports provided
by the HELOC Servicer in connection with the creation of the Remittance Reports
required of the HELOC Servicer pursuant to Section 4.01 of this HELOC Servicing
Agreement and the HELOC Back-Up Servicer’s obligations under Sections 3.01,
4.02, 4.03 and 4.04 of the HELOC Back-Up Servicing Agreement.
The
relationship of the HELOC Servicer (and of any successor to the HELOC Servicer
under this Agreement) to the HELOC Back-Up Servicer and the other parties hereto
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent; provided,
however, that the HELOC Servicer is authorized and empowered by the Indenture
Trustee, in its own name or in the name of any HELOC Subservicer, when the
HELOC
Servicer or such HELOC Subservicer, as the case may be, believes it is
appropriate in its best judgment to register any HELOC Mortgage Loan on the
MERS7
System,
or cause the removal from the registration of any HELOC Mortgage Loan on the
MERS7
System,
to execute and deliver, on behalf of the Indenture Trustee, any and all
instruments of assignment and other comparable instruments with respect to
such
assignment or re-recording of a Mortgage in the name of MERS, solely as nominee
for the Indenture Trustee and its successors and assigns. Any expenses incurred
in connection with the actions described in the preceding sentence shall be
borne by the HELOC Servicer in accordance with Section 3.15, with no right
of
reimbursement; provided, that if, as a result of MERS discontinuing or becoming
unable to continue operations in connection with the MERS System, it becomes
necessary to remove any HELOC Mortgage Loan from registration on the MERS System
and to arrange for the assignment of the related Mortgages to the Indenture
Trustee, then any related expenses shall be reimbursable to the HELOC Servicer
from the Trust Estate.
(b) With
respect to each HELOC Mortgage Loan, consistent with the terms of this HELOC
Servicing Agreement, the HELOC Servicer may consent to the placing of a lien
senior to that of the Mortgage on the related Mortgaged Property;
provided,
(i) the
Combined Loan-to-Value Ratio, which may be based on a new appraisal, of the
related HELOC Mortgage Loan immediately following the modification is not
greater than the Combined Loan-to-Value Ratio of such HELOC Mortgage Loan as
of
the date such HELOC Mortgage Loan was originated; or
(ii) in
the
case of any such action that would result in an increase in the Combined
Loan-to-Value Ratio over the Combined Loan-to-Value Ratio as of the date such
HELOC Mortgage Loan was originated, the aggregate number of HELOC Mortgage
Loans
with respect to which a new senior lien is consented to by the HELOC Servicer
does not exceed 5% of the number of HELOC Mortgage Loans as of the Cut-off
Date
or 30% of aggregate Stated Principal Balance of the HELOC Mortgage Loans as
of
such date, and the Combined Loan-to-Value Ratio after giving effect to the
modification does not exceed 100%.
(c) The
HELOC
Servicer or the related HELOC Subservicer, as the case may be, shall be entitled
to (A) execute assumption agreements, substitution agreements, and instruments
of satisfaction or cancellation or of full release or discharge, or any other
document contemplated by this HELOC Servicing Agreement and other comparable
instruments with respect to the HELOC Mortgage Loans and with respect to the
Mortgaged Properties subject to the Mortgages (and the Indenture Trustee shall
promptly execute or cause to be executed any such documents on request of the
HELOC Servicer and prepared by it) and (B) approve the granting of an easement
thereon in favor of another Person, any alteration or demolition of the related
Mortgaged Property or other similar matters, if it has determined, exercising
its good faith business judgment in the same manner as it would if it were
the
owner of the related HELOC Mortgage Loan, that the security for, and the timely
and full collectability of, such HELOC Mortgage Loan would not be adversely
affected thereby. An assumption pursuant to this Section 3.01 is permitted
solely if the creditworthiness of the prospective purchaser of a Mortgaged
Property meets the same or better underwriting guidelines as those which were
applied to the original borrower and the security for such HELOC Mortgage Loan
is not impaired by the assumption. Any fee collected by the HELOC Servicer
or
the related HELOC Subservicer for processing such request will be retained
by
the HELOC Servicer or such HELOC Subservicer as additional servicing
compensation.
(d) Notwithstanding
the provisions of Subsection 3.01(a), the HELOC Servicer shall not take any
action inconsistent with the interests of the Indenture Trustee or with the
rights and interests of the HELOC Back-Up Servicer under this HELOC Servicing
Agreement.
(e) The
Indenture Trustee shall execute and return to the HELOC Servicer any limited
powers of attorney and other documents in form as provided to the Indenture
Trustee necessary or appropriate to enable the HELOC Servicer to service and
administer the related HELOC Mortgage Loans and REO Property.
(f) With
respect to each HELOC Mortgage Loan, the HELOC Servicer may also, without
approval from the Rating Agencies or the Credit Enhancer, increase the Credit
Limit on a HELOC Mortgage Loan if such increase is consistent with the HELOC
Servicer’s underwriting policies and a new Appraised Value is obtained and the
Combined Loan-to-Value Ratio of the HELOC Mortgage Loan after giving effect
to
the increase is less than or equal to the Combined Loan-to-Value Ratio of the
HELOC Mortgage Loan as of the Cut-off Date.
(g) With
respect to each HELOC Mortgage Loan, the HELOC Servicer may increase the Credit
Limits on up to 10% of the number of HELOC Mortgage Loans as of the Cut-off
Date
if the increase in the Credit Limit of any single HELOC Mortgage Loan does
not
cause the Combined Loan-to-Value Ratio of such HELOC Mortgage Loan to exceed
100%.
(h) With
respect to each HELOC Mortgage Loan, the HELOC Servicer, without prior approval
from the Rating Agencies, the Indenture Trustee or the Credit Enhancer, may
solicit Mortgagors for a reduction in Margins on up to 10% of the number of
HELOC Mortgage Loans as of the Cut-off Date, provided that the cumulative impact
of any such Margin reductions shall not result in the reduction of the weighted
average Margin of the HELOC Mortgage Loans as of the Cut-off Date by more than
25 basis points taking into account any prior reductions.
In
no
event shall the HELOC Servicer modify the maturity of any HELOC Mortgage Loan
to
a maturity that is later than the Final Scheduled Payment Date. Nothing in
this
HELOC Servicing Agreement shall limit the right of the HELOC Servicer to solicit
mortgagors with respect to new loans (including mortgage loans).
Other
than as specifically provided herein, neither the HELOC Servicer nor the HELOC
Back-Up Servicer shall make any modifications to the terms of a HELOC Mortgage
Loan without the prior written consent of the Credit Enhancer, unless such
modifications do not materially and adversely affect the interests of the Class
V-A Noteholders or the Credit Enhancer and are consistent with prudent business
practice.
Section
3.02 HELOC
Subservicing Agreements Between HELOC Servicer and HELOC
Subservicers.
(a)
The
HELOC Servicer may enter into HELOC Subservicing Agreements with HELOC
Subservicers for the servicing and administration of the HELOC Mortgage Loans
and for the performance of any and all other activities of the HELOC Servicer
hereunder. Any subservicing arrangement and the terms of the related
Subservicing Agreement must provide for the servicing of such Mortgage Loans
in
a manner consistent with the servicing arrangements contemplated hereunder
and
the HELOC Servicer shall cause any HELOC Subservicer to comply with the
provisions of this Agreement (including, without limitation, to provide the
information required to be delivered under Sections 4.06, 4.07 and 4.08 hereof),
to the same extent as if such HELOC Subservicer were the related HELOC Servicer.
Each HELOC Subservicer shall be either (i) an institution the accounts of which
are insured by the FDIC or (ii) another entity that engages in the business
of
originating or servicing mortgage loans comparable to the HELOC Mortgage Loans,
and in either case shall be authorized to transact business in the state or
states in which the related Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the HELOC Subservicer
to perform its obligations hereunder and under the related HELOC Subservicing
Agreement, and in either case shall be a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae approved
mortgage servicer. Any HELOC Subservicing Agreement entered into by the HELOC
Servicer shall include the provision that such Agreement may be terminated
with
or without cause and without the payment of any termination fee by any successor
HELOC Servicer (including, without limitation, the HELOC Back-Up Servicer as
successor HELOC Servicer) under this HELOC Servicing Agreement. In addition,
each HELOC Subservicing Agreement shall provide for servicing of the HELOC
Mortgage Loans consistent with the terms of this HELOC Servicing Agreement.
The
HELOC Servicer and the HELOC Subservicers may enter into HELOC Subservicing
Agreements and make amendments to the HELOC Subservicing Agreements or enter
into different forms of HELOC Subservicing Agreements providing for, among
other
things, the delegation by the HELOC Servicer to a HELOC Subservicer of
additional duties regarding the administration of the HELOC Mortgage Loans;
provided, however, that any such amendments or different forms shall be
consistent with and not violate the provisions of this HELOC Servicing
Agreement, and that no such amendment or different form shall be made or entered
into which could be reasonably expected to be materially adverse to the
interests of the Indenture Trustee and the Noteholders, without the consent
of
the HELOC Back-Up Servicer.
(b) As
part
of its servicing activities hereunder, the HELOC Servicer shall enforce the
obligations of each HELOC Subservicer under the related HELOC Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of HELOC Subservicing Agreements and the
pursuit of other appropriate remedies, shall be in such form and carried out
to
such an extent and at such time as the HELOC Servicer, in its good faith
business judgment, would require were it the owner of the related HELOC Mortgage
Loans. The HELOC Servicer shall pay the costs of such enforcement at its own
expense, but shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement only to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loan or (ii) from
a
specific recovery of costs, expenses or attorneys’ fees against the party
against whom such enforcement is directed.
(c) The
HELOC
Servicer
shall promptly, upon request, provide to the HELOC Back-Up Servicer, the
Securities Administrator, the Indenture Trustee and the Sponsor a written
description (in form and substance satisfactory to the HELOC Back-Up Servicer,
the Securities Administrator, the Indenture Trustee and the Sponsor) of the
role
and function of each HELOC Subservicer utilized by the HELOC Servicer,
specifying (i) the identity of each such HELOC Subservicer, (ii) which (if
any)
of such HELOC Subservicers 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 HELOC Subservicer identified pursuant to clause (ii) of this subsection.
The HELOC Servicer shall be responsible for obtaining from each HELOC
Subservicer and delivering to the HELOC Back-Up Servicer any annual statement
of
compliance, assessment of compliance, attestation report and ▇▇▇▇▇▇▇▇-▇▇▇▇▇
related certification as and when required to be delivered. The HELOC Servicer
shall pay all fees of each of its HELOC Subservicers from its own
funds.
Section
3.03 Successor
HELOC Subservicers.
The
HELOC Servicer shall be entitled to terminate any HELOC Subservicing Agreement
that may exist in accordance with the terms and conditions of such HELOC
Subservicing Agreement subject to the terms of Section 3.02(a) of this HELOC
Servicing Agreement; provided, however, that upon termination, the HELOC
Servicer shall either act as servicer of the related Mortgage Loan or enter
into
an appropriate contract with a successor HELOC Subservicer and in conformance
with the terms of Section 3.02(a) of this HELOC Servicing Agreement pursuant
to
which such successor HELOC Subservicer will be bound by all relevant terms
of
the related HELOC Subservicing Agreement and this HELOC Servicing Agreement
pertaining to the servicing of such HELOC Mortgage Loan.
Section
3.04 Liability
of the HELOC Servicer.
(a)
Notwithstanding any HELOC Subservicing Agreement, any of the provisions of
this
HELOC Servicing Agreement relating to agreements or arrangements between the
HELOC Servicer and a HELOC Subservicer or reference to actions taken through
a
HELOC Subservicer or otherwise, the HELOC Servicer shall under all circumstances
remain obligated and primarily liable to the Indenture Trustee, the Issuing
Entity, the Credit Enhancer and the Noteholders for the servicing and
administering of the HELOC Mortgage Loans and any REO Property in accordance
with this HELOC Servicing Agreement. The obligations and liability of the HELOC
Servicer shall not be diminished by virtue of HELOC Subservicing Agreements
or
by virtue of indemnification of the HELOC Servicer by any HELOC Subservicer,
or
any other Person. The obligations and liability of the HELOC Servicer shall
remain of the same nature and under the same terms and conditions as if the
HELOC Servicer alone were servicing and administering the related HELOC Mortgage
Loans. The HELOC Servicer shall, however, be entitled to enter into
indemnification agreements with any HELOC Subservicer or other Person and
nothing in this HELOC Servicing Agreement shall be deemed to limit or modify
such indemnification. For the purposes of this HELOC Servicing Agreement, the
HELOC Servicer shall be deemed to have received any payment on a HELOC Mortgage
Loan on the date the HELOC Subservicer received such payment; provided, however,
that this sentence shall not apply to the HELOC Back-Up Servicer as the
successor HELOC Servicer.
Any
HELOC
Subservicing Agreement that may be entered into and any transactions or services
relating to the HELOC Mortgage Loans involving a HELOC Subservicer in its
capacity as such shall be deemed to be between the HELOC Subservicer and the
HELOC Servicer alone, and none of the HELOC Back-Up Servicer, the Issuing
Entity, the Indenture Trustee or the Noteholders shall be deemed a party thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the HELOC Subservicer except as set forth in Section
3.05.
Section
3.05 Assumption
or Termination of HELOC Subservicing Agreements by HELOC Back-Up
Servicer.
(a)
If the
HELOC Back-Up Servicer or a successor HELOC Servicer shall assume the servicing
obligations of the HELOC Servicer in accordance with Section 6.02 below, the
HELOC Back-Up Servicer, to the extent necessary to permit the HELOC Back-Up
Servicer to carry out the provisions of Section 6.02 with respect to the HELOC
Mortgage Loans, shall succeed to all of the rights and obligations of the HELOC
Servicer under each of the HELOC Subservicing Agreements. In such event, the
HELOC Back-Up Servicer or its designee as the successor servicer shall be deemed
to have assumed all of the HELOC Servicer’s rights and obligations therein and
to have replaced the HELOC Servicer as a party to such HELOC Subservicing
Agreements to the same extent as if such HELOC Subservicing Agreements had
been
assigned to the HELOC Back-Up Servicer or its designee as a successor servicer,
except that the HELOC Back-Up Servicer or its designee as a successor HELOC
Servicer shall not be deemed to have assumed any obligations or liabilities
of
the HELOC Servicer arising prior to such assumption and the HELOC Servicer
shall
not thereby be relieved of any liability or obligations under such HELOC
Subservicing Agreements arising prior to such assumption. Nothing in the
foregoing shall be deemed to entitle the HELOC Back-Up Servicer or its designee
as a successor HELOC Servicer at any time to receive any portion of the
servicing compensation provided under Section 3.15 except for such portion
as
the HELOC Servicer would be entitled to receive.
(b) In
the
event that the HELOC Back-Up Servicer or a successor HELOC Servicer assumes
the
servicing obligations of the HELOC Servicer under Section 6.02, upon the
reasonable request of the HELOC Back-Up Servicer or such successor HELOC
Servicer, the HELOC Servicer shall at its own expense (or the expense of the
Trust, if the HELOC Servicer fails to do so) deliver to the HELOC Back-Up
Servicer, or to such successor HELOC Servicer photocopies of all documents,
files and records, electronic or otherwise, relating to the HELOC Subservicing
Agreements and the related HELOC Mortgage Loans or REO Property then being
serviced and an accounting of amounts collected and held by it, if any, and
will
otherwise cooperate and use its reasonable efforts to effect the orderly and
efficient transfer of the HELOC Subservicing Agreements, or responsibilities
hereunder to the HELOC Back-Up Servicer, or to such successor HELOC
Servicer.
Section
3.06 Collection
of Mortgage Loan Payments.
(a)
The
HELOC Servicer will coordinate and monitor remittances by HELOC Subservicers
to
it with respect to the HELOC Mortgage Loans in accordance with this HELOC
Servicing Agreement.
(b) The
HELOC
Servicer shall make its best reasonable efforts to collect or cause to be
collected all payments required under the terms and provisions of the HELOC
Mortgage Loans and shall follow, and use its best reasonable efforts to cause
HELOC Subservicers to follow, collection procedures comparable to the collection
procedures of prudent mortgage lenders servicing home equity line of credit
mortgage loans for their own account to the extent such procedures shall be
consistent with this HELOC Servicing Agreement. Consistent with the foregoing,
the HELOC Servicer or the related HELOC Subservicer may in its discretion (i)
waive or permit to be waived any late payment charge or assumption fee, (ii)
permit a Mortgagor to make Draws up to $500 in excess of the Credit Limit,
and
(iii) arrange or permit an arrangement with a Mortgagor for the payment of
interest due and unpaid; provided, however, that the HELOC Servicer or the
related HELOC Subservicer may permit the foregoing only if it believes, in
good
faith, that recoveries of Monthly Payments will be maximized; provided further,
however, that Monthly Payments may not be suspended during the twelve months
prior to the final maturity of the Class V-A Notes.
(c) Within
five Business Days after the HELOC Servicer has determined that all amounts
which it expects to recover from or on account of a HELOC Mortgage Loan have
been recovered and that no further Liquidation Proceeds or Recoveries will
be
received in connection therewith, the HELOC Servicer shall provide to the
HELOC
Back-Up Servicer and the Securities Administrator
a
certificate of a Servicing Officer that such HELOC Mortgage Loan became a
Liquidated Mortgage Loan or a Charged-Off HELOC Mortgage Loan as of the date
of
such determination. The HELOC Servicer shall provide to the HELOC Back-Up
Servicer and the Securities Administrator a monthly summary of each HELOC
Mortgage Loan that became a Liquidated Mortgage Loan or a Charged-Off HELOC
Mortgage Loan.
(d) The
HELOC
Servicer shall establish a segregated account in the name of the Indenture
Trustee for the benefit of the Class V-A Noteholders (“Collection Account”),
which shall be an Eligible Account, in which the HELOC Servicer shall deposit
or
cause to be deposited any amounts representing payments on and any collections
in respect of the HELOC Mortgage Loans due subsequent to the Cut-off Date (other
than in respect of the payments referred to in the following paragraph) within
2
Business Days following receipt thereof (or otherwise on or prior to the Closing
Date), including the following payments and collections received or made by
it
(without duplication):
(i) all
payments of principal, including Principal Prepayments, of or interest on the
HELOC Mortgage Loans received by the HELOC Servicer directly from Mortgagors
or
from the respective HELOC Subservicer;
(ii) aggregate
Repurchase Price of the HELOC Mortgage Loans purchased by the HELOC Servicer
pursuant to Section 3.18;
(iii) Net
Liquidation Proceeds;
(iv) all
proceeds of any HELOC Mortgage Loans repurchased by the Sponsor pursuant to
the
Mortgage Loan Purchase Agreement and amount of any Transferor Deposit Amount
paid by the Sponsor during the related Due Period pursuant to the Mortgage
Loan
Purchase Agreement and all Substitution Adjustment Amounts required to be
deposited in connection with the substitution of an Eligible Substitute Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement;
(v) Insurance
Proceeds, other than Net Liquidation Proceeds, resulting from any insurance
policy maintained on a Mortgaged Property;
(vi) [Reserved];
(vii) Released
Mortgaged Property Proceeds;
(viii) Net
Recoveries;
(ix) the
amount of any losses incurred by the HELOC Servicer with respect to the
investment of funds in the Collection Account; and
(x) any
other
amounts received by the HELOC Servicer, including any fees or penalties not
retained by a HELOC Subservicer, required to be deposited in the Collection
Account pursuant to this HELOC Servicing Agreement.
provided,
however,
that
with respect to each Due Period, the HELOC Servicer shall be permitted to retain
from payments in respect of interest on the HELOC Mortgage Loans, the HELOC
Servicing Fee for such Due Period. The foregoing requirements respecting
deposits to the Collection Account are exclusive, it being understood that,
without limiting the generality of the foregoing, the HELOC Servicer need not
deposit in the Collection Account fees (including annual fees or assumption
fees) or late charges, payable by Mortgagors, each as further described in
Section 3.15. In the event any amount not required to be deposited in the
Collection Account is so deposited, the HELOC Servicer may at any time (prior
to
being terminated under this Agreement) withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding. The HELOC
Servicer shall keep records that accurately reflect the funds on deposit in
the
Collection Account that have been identified by it as being attributable to
the
HELOC Mortgage Loans and shall hold all collections in the Collection Account
for the benefit of the Class V-A Noteholders. The HELOC Servicer shall be
entitled to retain all Foreclosure Profits and shall not be obligated to deposit
any Foreclosure Profits in the Collection Account.
Funds
in
the Collection Account may not be invested with, and shall not be commingled
with, the HELOC Servicer’s own funds or general assets or with funds respecting
payments on mortgage loans or with any other funds not related to the Class
V-A
Notes. Funds in the Collection Account shall be invested solely in Eligible
Investments, designated in the name of the Indenture Trustee for the benefit
of
the Class V-A Noteholders, which shall mature not later than the Business Day
next preceding the HELOC Servicer Remittance Date next following the date of
such investment and shall not be sold or disposed of prior to maturity. All
income and gain realized from any such investment shall be for the benefit of
the HELOC Servicer or the related HELOC Subservicer. The amount of any losses
incurred with respect to any such investments shall be deposited in the
Collection Account by the HELOC Servicer on the Business Day prior to the HELOC
Servicer Remittance Date.
(e) The
HELOC
Servicer will require each HELOC Subservicer to hold all funds constituting
collections on the HELOC Mortgage Loans, pending remittance thereof to the
HELOC
Servicer, in one or more accounts meeting the requirements of an Eligible
Account, and invested in Eligible Investments, and in the name of the Indenture
Trustee for the benefit of the Class V-A Noteholders. The related HELOC
Subservicer shall segregate and hold all funds collected and received pursuant
to each HELOC Mortgage Loan separate and apart from any of its own funds and
general assets and any other funds.
Section
3.07 Withdrawals
from the Collection Account.
(a)
The
HELOC Servicer shall, from time to time as provided herein, make withdrawals
from the Collection Account of amounts on deposit therein pursuant to Section
3.06 that are attributable to the HELOC Mortgage Loans for the following
purposes (without duplication):
(i) to
remit
to the Securities Administrator, by the HELOC Servicer Remittance Date, all
amounts required to be deposited in the Collection Account as of the close
of
business on the related Determination Date;
(ii) to
the
extent deposited to the Collection Account, to reimburse itself or the related
HELOC Subservicer for previously unreimbursed expenses incurred in maintaining
individual insurance policies pursuant to Section 3.11, or Liquidation Expenses,
paid pursuant to Section 3.13 or otherwise reimbursable pursuant to the terms
of
this HELOC Servicing Agreement, such withdrawal right being limited to amounts
received on the related HELOC Mortgage Loans (other than any Repurchase Price
in
respect thereto) which represent late recoveries of the payments for which
such
advances were made, or from related Liquidation Proceeds or related
Recoveries;
(iii) to
pay to
itself out of each payment received on account of interest on a HELOC Mortgage
Loan as contemplated by Section 3.15, an amount equal to the related HELOC
Servicing Fee (to the extent not retained pursuant to Section
3.06);
(iv) to
pay to
itself or the Sponsor, with respect to any HELOC Mortgage Loan or property
acquired in respect thereof that has been purchased or otherwise transferred
to
the Sponsor, the HELOC Servicer or other entity, all amounts received thereon
and not required to be distributed to Class V-A Noteholders as of the date
on
which the related Purchase Price or Repurchase Price is determined;
(v) to
pay to
the HELOC Back-Up Servicer the HELOC Back-Up Servicing Fee;
(vi) to
reimburse the HELOC Servicer or any HELOC Subservicer from Insurance Proceeds,
Liquidation Proceeds or Recoveries relating to a particular HELOC Mortgage
Loan
for amounts expended by the HELOC Servicer or such HELOC Subservicer pursuant
to
Section 3.13 in good faith in connection with the restoration of the related
Mortgaged Property which was damaged by the Uninsured Cause or in connection
with the liquidation of such HELOC Mortgage Loan;
(vii) to
pay
the HELOC Servicer or any HELOC Subservicer (payment to any HELOC Subservicer
to
be subject to prior payment to the HELOC Servicer of an amount equal to the
HELOC Servicing Fee), as appropriate, from Liquidation Proceeds, Insurance
Proceeds or Recoveries received in connection with the liquidation of any HELOC
Mortgage Loan, the amount which it or such HELOC Subservicer would have been
entitled to receive under subclause (iii) of this Subsection 3.07(a) as
servicing compensation on account of each defaulted Monthly Payment on such
HELOC Mortgage Loan if paid in a timely manner by the related Mortgagor, but
only to the extent that the aggregate of Liquidation Proceeds, Insurance
Proceeds and Recoveries with respect to such HELOC Mortgage Loan, after any
reimbursement to the HELOC Servicer or any HELOC Subservicer, pursuant to other
subclauses of this Subsection 3.07(a), exceeds the outstanding Stated Principal
Balance of such HELOC Mortgage Loan plus accrued and unpaid interest thereon
at
the related Mortgage Rate less the HELOC Servicing Fee Rate to but not including
the date of payment (in any event, the aggregate amount of servicing
compensation received by a HELOC Subservicer and the HELOC Servicer with respect
to any defaulted Monthly Payment shall not exceed the applicable HELOC Servicing
Fee);
(viii) to
reimburse the HELOC Servicer or any HELOC Subservicer for any Nonrecoverable
Advance previously made, and not otherwise reimbursed pursuant to this
Subsection 3.07(a);
(ix) to
withdraw any other amount deposited in the Collection Account that was not
required to be deposited therein pursuant to Section 3.06;
(x) to
withdraw any amount received from a Mortgagor that is recoverable and sought
to
be recovered as a voidable preference by a trustee in bankruptcy pursuant to
the
Bankruptcy Code in accordance with a final, nonappealable order of a court
having competent jurisdiction;
(xi) to
reimburse the HELOC Servicer for costs incurred by it associated with the
environmental report specified in Section 3.13(e);
(xii) to
pay to
the Sponsor, on behalf of the Depositor, to the extent that principal
collections exceed Draws, the outstanding principal balance of each Additional
Balance purchased by the Depositor from the Sponsor pursuant to the Mortgage
Loan Purchase Agreement; and
(xiii) to
clear
and terminate the Collection Account following a termination of the Trust
pursuant to Section 8.01 of the Trust Agreement.
In
connection with withdrawals pursuant to clauses (ii), (iii), (iv), (vi) and
(vii), the HELOC Servicer’s entitlement thereto is limited to collections or
other recoveries on the related HELOC Mortgage Loan, and the HELOC Servicer
shall keep and maintain separate accounting, on a HELOC Mortgage Loan by HELOC
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account pursuant to such clauses. Notwithstanding any other provision
of this HELOC Servicing Agreement, the HELOC Servicer shall be entitled to
reimburse itself for any previously unreimbursed expenses incurred pursuant
to
Section 3.13 or otherwise reimbursable expenses incurred pursuant to the terms
of this HELOC Servicing Agreement, but only to the extent of collections or
other recoveries on the related HELOC Mortgage Loan.
(b) Notwithstanding
the provisions of this Section 3.07, the HELOC Servicer may, but is not required
to, allow the HELOC Subservicers to deduct from amounts received by them or
from
the related account maintained by a HELOC Subservicer, prior to deposit in
the
Collection Account, any portion to which such HELOC Subservicers are entitled
hereunder as servicing compensation (including income on Eligible Investments)
or reimbursement of any reimbursable Servicing Advances made by such HELOC
Subservicers.
(c) The
HELOC
Servicer shall pay to the Securities Administrator interest on any payments
to
the Payment Account which were due on a HELOC Servicer Remittance Date but
were
made after the related HELOC Servicer Remittance Date at a rate equal to the
federal funds rate from the date due to the date paid, both inclusive. This
interest shall be solely an obligation of the HELOC Servicer and shall not
be
recoverable by the Securities Administrator from the Trust or from any other
source.
Section
3.08 Collection
of Taxes Assessments and Similar Items.
The
HELOC
Servicer and any HELOC Subservicers shall not be required to maintain records
relating to the payment of taxes, or deposit or retain any collections from
the
Mortgagors for the payment of taxes, assessments, insurance premiums, or
comparable items, with respect to the HELOC Mortgage Loans.
Section
3.09 Access
to Certain Documentation and Information Regarding the HELOC Mortgage
Loans.
The
HELOC Servicer shall provide, and shall cause any HELOC Subservicer to provide,
to the HELOC Back-Up Servicer, the Owner Trustee and the Indenture Trustee
or
its designee access to the documentation regarding the related HELOC Mortgage
Loans and REO Property and to the Class V-A Noteholders, the FDIC, and the
supervisory agents and examiners of the FDIC access to the documentation
regarding the related HELOC Mortgage Loans required by applicable regulations,
such access being afforded without charge but only upon reasonable request
and
during normal business hours at the offices of the HELOC Servicer or the HELOC
Subservicers that are designated by these entities; provided,
however,
that,
unless otherwise required by law, the HELOC Servicer or the HELOC Subservicer
shall not be required to provide access to such documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor; provided,
further,
however,
that
the HELOC Back-Up Servicer, the Owner Trustee and the Indenture Trustee shall
coordinate their requests for such access so as not to impose an unreasonable
burden on, or cause an unreasonable interruption of, the business of the HELOC
Servicer or any HELOC Subservicer. The HELOC Servicer and the HELOC Subservicers
shall allow representatives of the above entities to photocopy any of the
documentation and shall provide equipment for that purpose at a charge that
covers their own actual out-of-pocket costs.
Section
3.10 Reserved.
Section
3.11 Maintenance
of Hazard Insurance and Fidelity Coverage.
(a)
The
HELOC Servicer shall maintain and keep, or cause each HELOC Subservicer to
maintain and keep, with respect to each Mortgage Loan and REO Property, in
full
force and effect hazard insurance (fire insurance with extended coverage) equal
to the lesser of (i) the maximum insurable value of the improvements securing
such HELOC Mortgage Loan from time to time, (ii) the combined principal balance
owing on such HELOC Mortgage Loan and any mortgage loan senior to such HELOC
Mortgage Loan and (iii) the minimum amount required to compensate for damage
or
loss on a replacement cost basis, and containing a standard mortgagee clause,
provided,
however,
that
the amount of hazard insurance may not be less than the amount necessary to
prevent loss due to the application of any co-insurance provision of the related
policy. Unless applicable state law requires a higher deductible, the deductible
on such hazard insurance policy may be no more than $1,000 or 1% of the
applicable amount of coverage, whichever is less. In the case of a condominium
unit or a unit in a planned unit development, the required hazard insurance
shall take the form of a multi-peril policy covering the entire condominium
project or planned unit development, in an amount equal to at least 100% of
the
insurable value based on replacement cost.
(b) Any
amounts collected by the HELOC Servicer or a HELOC Subservicer under any such
hazard insurance policy (other than amounts to be applied to the restoration
or
repair of the Mortgaged Property or amounts released to the Mortgagor in
accordance with the HELOC Servicer’s or a HELOC Subservicer’s normal servicing
procedures, the Mortgage Note or applicable law) shall be deposited initially
in
a Collection Account, for transmittal to the Payment Account, subject to
withdrawal pursuant to Section 3.07.
(c) Any
cost
incurred by a HELOC Servicer or a HELOC Subservicer in maintaining any such
hazard insurance policy shall not be added to the amount owing under the HELOC
Mortgage Loan for the purpose of calculating monthly distributions to the HELOC
Back-Up Servicer, notwithstanding that the terms of the HELOC Mortgage Loan
so
permit. Such costs shall be recoverable by the HELOC Servicer or a HELOC
Subservicer out of related late payments by the Mortgagor or out of Insurance
Proceeds or Liquidation Proceeds or by the HELOC Servicer from the Repurchase
Price, or as otherwise provided in Section 3.07.
(d) No
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any
time
be in force and shall require such additional insurance.
(e) If
insurance has not been maintained complying with Subsection 3.11(a) and there
shall have been a loss which would have been covered by such insurance had
it
been maintained, the HELOC Servicer shall pay, or cause the related HELOC
Subservicer to pay, for any necessary repairs.
(f) The
HELOC
Servicer shall present, or cause the related HELOC Subservicer to present,
claims under the related hazard insurance.
(g) The
HELOC
Servicer shall obtain and maintain at its own expense and for the duration
of
this HELOC Servicing Agreement and shall cause each HELOC Subservicer to obtain
and maintain a blanket fidelity bond and an errors and omissions insurance
policy covering such Person’s officers, employees and other persons acting on
its behalf in connection with its activities under this HELOC Servicing
Agreement or the related HELOC Subservicing Agreement. The amount of coverage
shall be at least equal to the coverage maintained by the HELOC Servicer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac to service loans for it or otherwise
in
an amount as is commercially available at a cost that is generally not regarded
as excessive by industry standards. The HELOC Servicer shall promptly notify
the
HELOC Back-Up Servicer of any material change in the terms of such bond or
policy. The HELOC Servicer shall provide annually to the HELOC Back-Up Servicer
a certificate of insurance that each such bond and policy are in effect. If
any
such bond or policy ceases to be in effect, the HELOC Servicer shall, to the
extent possible, give the HELOC Back-Up Servicer ten days’ notice prior to any
such cessation and the HELOC Servicer shall use its reasonable best efforts
to
obtain a comparable replacement bond or policy, as the case may be. Any amounts
relating to the HELOC Mortgage Loans collected under each such bond or policy
shall be deposited initially in a Collection Account for transmittal to the
Payment Account, subject to withdrawal pursuant to Section 3.07.
Section
3.12 Due-on-Sale
Clauses; Assumption Agreements.
(a)
In any
case in which the HELOC Servicer is notified by any Mortgagor or HELOC
Subservicer that a Mortgaged Property relating to a HELOC Mortgage Loan has
been
or is about to be conveyed by the Mortgagor, the HELOC Servicer shall enforce,
or shall instruct such HELOC Subservicer to enforce, any due-on-sale clause
contained in the related Mortgage to the extent permitted under the terms of
the
related Mortgage Note and by applicable law. If the HELOC Servicer reasonably
believes that such due-on-sale clause cannot be enforced under applicable law
or
if the HELOC Mortgage Loan does not contain a due-on-sale clause, the HELOC
Servicer is authorized, and may authorize any HELOC Subservicer, to consent to a
conveyance subject to the lien of the Mortgage, and to take or enter into an
assumption agreement from or with the Person to whom such property has been
or
is about to be conveyed, pursuant to which such Person becomes liable under
the
related HELOC Mortgage Note and unless prohibited by applicable state law,
such
Mortgagor remains liable thereon, on condition, however, that the related HELOC
Mortgage Loan shall continue to be covered by a hazard policy. In connection
with any such assumption, no material term of the related Mortgage Note may
be
changed. The HELOC Servicer shall forward to the Indenture Trustee the original
copy of such assumption agreement, which copy shall be added by the Indenture
Trustee to the related Mortgage File and which shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. A portion, equal to
up to
2% of the Stated Principal Balance of the related HELOC Mortgage Loan, of any
fee or additional interest collected by the HELOC Servicer or the related HELOC
Subservicer for consenting in any such conveyance or entering into any such
assumption agreement may be retained by the HELOC Servicer as additional
servicing compensation.
(b) Notwithstanding
the foregoing paragraph or any other provision of this HELOC Servicing
Agreement, the HELOC Servicer shall not be deemed to be in default, breach
or
any other violation of its obligations hereunder by reason of any assumption
of
a HELOC Mortgage Loan by operation of law or any conveyance by the Mortgagor
of
the related Mortgaged Property or assumption of a HELOC Mortgage Loan which
the
HELOC Servicer reasonably believes it may be restricted by law from preventing,
for any reason whatsoever or if the exercise of such right would impair or
threaten to impair any recovery under any applicable insurance
policy.
Section
3.13 Realization
Upon Defaulted HELOC Mortgage Loans.
(a)
The
HELOC Servicer shall, or shall direct the related HELOC Subservicer to,
foreclose upon or otherwise comparably convert the ownership of properties
securing any HELOC Mortgage Loans that come into and continue in default and
as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.06 only if the HELOC Servicer determines that
there is sufficient equity in the related Mortgaged Property to justify such
foreclosure, except that the HELOC Servicer shall not, and shall not direct
the
related HELOC Subservicer to, foreclose upon or otherwise comparably convert
a
Mortgaged Property if there is evidence of toxic waste or other environmental
hazards thereon unless the HELOC Servicer follows the procedures in Subsection
(e) below. The
HELOC
Servicer, on behalf of the Trust, may also, in its discretion, as an alternative
to foreclosure, sell defaulted HELOC Mortgage Loans at fair market value to
third-parties, if the HELOC Servicer reasonably believes that such sale would
maximize proceeds to the Trust (on a present value basis) with respect to each
such HELOC Mortgage Loan.
(b) The
HELOC
Servicer shall foreclose or shall direct the related HELOC Subservicer to
foreclose on any Mortgaged Property in the name of the Indenture Trustee for
the
benefit of the Class V-A Noteholders.
(c) In
connection with such foreclosure or other conversion, the HELOC Servicer in
conjunction with the related HELOC Subservicer, if any, shall use its best
reasonable efforts to preserve REO Property and to realize upon defaulted HELOC
Mortgage Loans in such manner (including short sales) as to maximize the receipt
of principal and interest by the Class V-A Noteholders, taking into account,
among other things, the timing of foreclosure and the considerations set forth
in Subsection 3.13(d). The foregoing is subject to the proviso that the HELOC
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it determines
in
good faith (i) that such restoration or foreclosure will increase the proceeds
of liquidation of the HELOC Mortgage Loan to the Class V-A Noteholders after
reimbursement to itself for such expenses and (ii) that such expenses will
be
recoverable to it either through Liquidation Proceeds (respecting which it
shall
have priority for purposes of reimbursements from the Collection Account
pursuant to Section 3.07) or through Insurance Proceeds (respecting which it
shall have similar priority). The HELOC Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof (as well as its normal servicing
compensation). Any income from or other funds (net of any income taxes)
generated by REO Property shall be deemed for purposes of this HELOC Servicing
Agreement to be Insurance Proceeds.
(d) The
Trust
Estate shall not acquire any real property (or any personal property incident
to
such real property) except in connection with a default or reasonably
foreseeable default of a HELOC Mortgage Loan. In the event that the Trust Estate
acquires any real property (or personal property incident to such real property)
in connection with a default or imminent default of a HELOC Mortgage Loan,
such
property shall be disposed of by the HELOC Servicer (or its agent) on behalf
of
the Trust Estate within two years after its acquisition by the Trust
Estate.
(e) With
respect to any HELOC Mortgage Loan as to which the HELOC Servicer or a HELOC
Subservicer has received notice of, or has actual knowledge of, the presence
of
any toxic or hazardous substance on the Mortgaged Property, the HELOC Servicer
shall promptly notify the HELOC Back-Up Servicer and shall act in accordance
with any directions and instructions provided by the HELOC Back-Up Servicer.
If
the HELOC Back-Up Servicer has not provided directions and instructions to
the
HELOC Servicer in connection with any such HELOC Mortgage Loan within 30 days
of
a request by the HELOC Servicer for such directions and instructions, then
the
HELOC Servicer shall take such action as it deems to be in the best economic
interest of the Trust Estate (other than proceeding against the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage. The
parties hereto acknowledge that the HELOC Servicer shall not obtain on behalf
of
the Issuing Entity a deed as a result or in lieu of foreclosure, and shall
not
otherwise acquire possession of or title to, or commence any proceedings to
acquire possession of or title to, or take any other action with respect to,
any
Mortgaged Property, if the HELOC Back-Up Servicer, the Owner Trustee or the
Indenture Trustee could reasonably be considered to be a responsible party
for
any liability arising from the presence of any toxic or hazardous substance
on
the Mortgaged Property.
Section
3.14 Indenture
Trustee to Cooperate; Release of Mortgage Files.
(a)
Upon
payment in full of any HELOC Mortgage Loan following the end of the related
Draw
Period, the HELOC Servicer will immediately notify the Indenture Trustee by
a
certification signed by a Servicing Officer in the form of the request for
release (“Request for Release”) attached hereto as Exhibit B (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Collection Account have been so deposited) and shall request
delivery to the HELOC Servicer or HELOC Subservicer, as the case may be, of
the
related Mortgage File. Upon receipt of such certification and request, the
Indenture Trustee shall release related Mortgage File to the HELOC Servicer
or
HELOC Subservicer and shall execute and deliver to the HELOC Servicer, without
recourse, representation or warranty an instrument of satisfaction of mortgage
releasing the lien of the Mortgage (furnished by the HELOC Servicer), together
with the Mortgage Note. In connection with the satisfaction of any MOM Loan,
the
HELOC Servicer is authorized to cause the removal from the registration on
the
MERS7
System
of such Mortgage.
(b) From
time
to time as is appropriate, for the servicing or foreclosure of any HELOC
Mortgage Loan or collection under an insurance policy, the HELOC Servicer may
deliver to the Indenture Trustee a Request for Release signed by a Servicing
Officer on behalf of the HELOC Servicer in substantially the form attached
as
Exhibit B hereto. Upon receipt of the Request for Release, the Indenture Trustee
shall deliver the Mortgage File or any document therein to the HELOC Servicer
or
HELOC Subservicer, as the case may be.
(c) The
HELOC
Servicer shall cause each Mortgage File or any document therein released
pursuant to Subsection 3.14(b) to be returned to the Indenture Trustee when
the
need therefor no longer exists, and in any event within 21 days of the HELOC
Servicer’s or HELOC Subservicer’s receipt thereof, unless the HELOC Mortgage
Loan has become a Liquidated Mortgage Loan or a Charged-Off HELOC Mortgage
Loan
and the Liquidation Proceeds or Recoveries relating to the HELOC Mortgage Loan
have been deposited in the Collection Account or such Mortgage File is being
used to pursue foreclosure or other legal proceedings. Prior to return of a
Mortgage File or any document to the Indenture Trustee, the HELOC Servicer,
the
Credit Enhancer or HELOC Subservicer to whom such file or document was delivered
shall retain such file or document in its respective control as bailee for
the
Indenture Trustee unless the Mortgage File or such document has been delivered
to an attorney, or to a public trustee or other public official as required
by
law, to initiate or pursue legal action or other proceedings for the foreclosure
of the related Mortgaged Property either judicially or non- judicially, and
the
HELOC Servicer or HELOC Subservicer has delivered to the Indenture Trustee
a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. If a HELOC Mortgage Loan becomes a
Liquidated Mortgage Loan or a Charged-Off HELOC Mortgage Loan, the HELOC
Servicer or HELOC Subservicer shall deliver the Request for Release with respect
thereto to the Indenture Trustee and, upon deposit of the related Liquidation
Proceeds or Recoveries in the Collection Account as certified to the Indenture
Trustee, the Indenture Trustee shall deliver the related Mortgage File or any
document therein to the HELOC Servicer or HELOC Subservicer, as
applicable.
(d) The
Indenture Trustee shall execute and deliver to the HELOC Servicer or HELOC
Subservicer any court pleadings, requests for trustee’s sale or other documents
prepared and delivered to the Indenture Trustee for execution necessary to
(i)
the foreclosure or trustee’s sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note; (iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce
any other rights or remedies provided by the Mortgage Note or otherwise
available at law or equity. Together with such documents or pleadings the HELOC
Servicer or HELOC Subservicer shall deliver to the Indenture Trustee a
certificate of a Servicing Officer in which it requests the Indenture Trustee
to
cause to be executed the pleadings or documents. The Indenture Trustee and
any
officer, director, employee or agent of the Indenture Trustee may rely in good
faith on any such document submitted by the HELOC Servicer or HELOC Subservicer.
The certificate shall certify and explain the reasons for which the pleadings
or
documents are required. It shall further certify that the execution and delivery
of the pleadings or documents will not invalidate any insurance coverage under
the insurance policies or invalidate or otherwise affect the lien of the
Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee’s sale.
Section
3.15 Servicing
Compensation.
(a)
As
compensation for its activities hereunder, the HELOC Servicer shall be entitled
to receive the HELOC Servicing Fee from full payments of accrued interest on
each HELOC Mortgage Loan or as otherwise provided in Section 3.07. The HELOC
Servicer shall be solely responsible for paying any and all fees with respect
to
a HELOC Subservicer and neither the Indenture Trustee nor the HELOC Back-Up
Servicer shall bear any fees, expenses or other costs directly associated with
any HELOC Subservicer.
(b) The
HELOC
Servicer may retain additional servicing compensation in the form of a portion
of the assumption fees up to 2% of the Stated Principal Balance of the related
HELOC Mortgage Loan, fees for statement of account or payoff, late payment
charges, or otherwise, to the extent such fees are collected from the related
Mortgagors or, with respect to a Liquidated Mortgage Loan, to the extent such
fees have accrued. The HELOC Servicer shall be required to pay all expenses
it
incurs in connection with servicing activities under this HELOC Servicing
Agreement and shall not be entitled in connection with servicing activities
under this HELOC Servicing Agreement to reimbursement except as provided in
this
HELOC Servicing Agreement. Expenses to be paid by the HELOC Servicer under
this
Subsection 3.15(b) shall include payment of the expenses of the accountants
retained pursuant to Section 3.17.
Section
3.16 Reserved.
Section
3.17 Reserved.
Section
3.18 Optional
Purchase of Defaulted Mortgage Loans.
The
HELOC Servicer may but is not obligated to, repurchase from the Issuing Entity
any Mortgage Loan delinquent in payment for a period of 90 days or longer for
a
price equal to the Repurchase Price. Notwithstanding the foregoing, the
Indenture Trustee, whether acting as Indenture Trustee or in the capacity of
successor HELOC Back-Up Servicer, shall have no obligation hereunder or under
any other Basic Document to repurchase any Mortgage Loan.
The
HELOC
Servicer shall have the option at any one time to purchase a minimum of five
(5)
Mortgage Loans from the Trust Estate with an aggregate Stated Principal Balance
up to 1% of the aggregate Stated Principal Balance of all of the Mortgage Loans
included in the Trust Estate on such date at a price equal to the aggregate
fair
market value of such Mortgage Loans.
In the
event that this option is exercised as to any five or more Mortgage Loans,
this
option will thereupon terminate. This option is not revocable by the HELOC
Servicer.
Section
3.19 Information
Required by the Internal Revenue Service Generally and Reports of Foreclosures
and Abandonments of Mortgaged Property.
The
HELOC Servicer shall prepare and deliver all federal and state information
reports when and as required by all applicable state and federal income tax
laws. In particular, with respect to the requirement under Section 6050J of
the
Code to the effect that the HELOC Servicer or a HELOC Subservicer shall make
reports of foreclosures and abandonments of any mortgaged property for each
year
beginning in 2006, the HELOC Servicer or HELOC Subservicer shall file reports
relating to each instance occurring during the previous calendar year in which
the HELOC Servicer or such HELOC Subservicer (i) acquires an interest in any
Mortgaged Property through foreclosure or other comparable conversion in full
or
partial satisfaction of a HELOC Mortgage Loan, or (ii) knows or has reason
to
know that any Mortgaged Property has been abandoned. The reports from the HELOC
Servicer or HELOC Subservicer shall be in form and substance sufficient to
meet
the reporting requirements imposed by Section 6050J, Section 6050H (reports
relating to mortgage interest received) and Section 6050P of the Code (reports
relating to cancellation of indebtedness).
Section
3.20 Fair
Credit Reporting Act.
The
HELOC Servicer, in its capacity as HELOC Servicer for each Mortgage Loan, agrees
to fully furnish in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit reporsitories), on a monthly
basis.
Section
3.21 Reserved.
Section
3.22 Transfers
of HELOC Mortgage Loans at Election of the Sponsor.
Subject
to the conditions below, the Sponsor may require the transfer of HELOC Mortgage
Loans from the Trust to the Sponsor as of the close of business on a Payment
Date (the ATransfer
Date@).
In
connection with any transfer, the Transferor Interest shall be reduced by the
aggregate Stated Principal Balances as of their Transfer Date of the HELOC
Mortgage Loans transferred. On the fifth Business Day (the ATransfer
Notice Date@)
before
the Transfer Date designated in the notice, the Sponsor shall give the Owner
Trustee, the Indenture Trustee, the Securities Administrator, the HELOC
Servicer, the Depositor and the Credit Enhancer a notice of the proposed
transfer that contains a list of randomly selected HELOC Mortgage Loans to
be
transferred. These transfers of HELOC Mortgage Loans shall be permitted if
the
following conditions are satisfied:
(i) No
Rapid
Amortization Event has occurred.
(ii) On
the
Transfer Date the Transferor Interest Principal Balance (after giving effect
to
the removal of the HELOC Mortgage Loans proposed to be transferred) exceeds
the
Minimum Transferor Interest.
(iii) The
transfer of any HELOC Mortgage Loans on any Transfer Date during the Managed
Amortization Period shall not, in the reasonable belief of the Sponsor, cause
a
Rapid Amortization Event to occur or an event that with notice or lapse of
time
or both would constitute a Rapid Amortization Event.
(iv) By
the
Transfer Date, the Sponsor shall have delivered to the Indenture Trustee, the
Credit Enhancer and the Securities Administrator a revised HELOC Mortgage Loan
Schedule, reflecting the proposed transfer and the Transfer Date, and the HELOC
Servicer shall have marked on its general accounting records to show that the
HELOC Mortgage Loans transferred to the Sponsor are no longer owned by the
Trust.
(v) The
Sponsor shall represent and warrant that no selection procedures reasonably
believed by the Sponsor to be adverse to the interests of the Class V-A
Noteholders or the Credit Enhancer were used in selecting the HELOC Mortgage
Loans to be removed from the Trust.
(vi) In
connection with each transfer of HELOC Mortgage Loans pursuant to this Section,
each Rating Agency and the Credit Enhancer shall have received by the related
Transfer Notice Date notice of the proposed transfer of HELOC Mortgage Loans
and, before the Transfer Date, each Rating Agency shall have notified the
Sponsor, the Indenture Trustee, the Depositor and the Credit Enhancer that
the
transfer of HELOC Mortgage Loans would not result in a reduction or withdrawal
of its then current rating of the Class V-A Notes without regard to the
Insurance Policy.
(vii) The
Sponsor shall have delivered to the Owner Trustee, the Depositor, the Indenture
Trustee and the Credit Enhancer an Officer’s Certificate certifying that the
items in subparagraphs (i) through (vi), inclusive, have been performed or
are
true, as the case may be. The Owner Trustee and the Indenture Trustee may
conclusively rely on the Officer’s Certificate, shall have no duty to make
inquiries with regard to the matters in it, and shall incur no liability in
so
relying.
Upon
receiving the requisite information from the Sponsor, the HELOC Servicer shall
perform in a timely manner those acts required of it, as specified above. Upon
satisfaction of the above conditions, on the Transfer Date each of the Indenture
Trustee and the HELOC Servicer shall cause delivery to be effected to the
Sponsor of the portion of the Mortgage File in its possession for each HELOC
Mortgage Loan being so transferred, and the Indenture Trustee shall execute
and
deliver to the Sponsor any other documents prepared by the Sponsor reasonably
necessary to transfer the HELOC Mortgage Loans to the Sponsor. This transfer
of
the Trust’s interest in HELOC Mortgage Loans shall be without recourse,
representation, or warranty by the Indenture Trustee or the Trust to the
Sponsor.
ARTICLE
IV
SERVICING
CERTIFICATE
Section
4.01 Remittance
Reports.
On or
prior to the eighteenth (18th)
calendar day of each month (or, if such eighteenth (18th)
day is
not a Business Day, the immediately preceding Business Day), the HELOC Servicer
or HELOC Subservicer shall deliver to the Securities Administrator and the
HELOC
Back-Up Servicer a report, prepared as of the close of business on the
Determination Date (“Remittance Report”), in the form of a disk or such other
electronic method as to which the Securities Administrator, the HELOC Servicer,
the HELOC Subservicer and HELOC Back-Up Servicer shall agree. Such report shall
detail the payments and collections in respect of the HELOC Mortgage Loans
for
each of the categories of deposit specified in Section 3.06(d) and each of
the
categories of withdrawal specified in Section 3.07(a). In addition, the report
shall detail amounts for each of the categories specified in the preceding
sentence that are to be included in interest collections and principal
collections for the related Payment Date. The Remittance Report and any written
information supplemental thereto shall include such information with respect
to
the HELOC Mortgage Loans that is reasonably available to the HELOC Servicer
or
HELOC Subservicer and that is required by the Securities Administrator for
purposes of making the calculations and providing the reports referred to in
the
Indenture.
The
determination by the HELOC Servicer or HELOC Subservicer of such amounts shall,
in absence of obvious error, be presumptively deemed to be correct for all
purposes hereunder and the Indenture Trustee and the Securities Administrator
shall be protected in relying upon the same without any independent check or
verification. The Indenture Trustee and the Securities Administrator shall
have
no obligation to recompute, recalculate or verify any information provided
to it
by the HELOC Servicer.
Section
4.02 Reserved.
Section
4.03 Reserved.
Section
4.04 Reserved.
Section
4.05 Reserved.
Section
4.06 HELOC
Servicer Compliance Statement.
(a) The
HELOC
Servicer, at its own expense, shall deliver (and shall cause any Servicing
Function Participant engaged by it to deliver) to the Sponsor, the Securities
Administrator and the Depositor on or before March 15 of each year, commencing
in March 2007, an Officer’s
Certificate stating, as to the signer thereof, that (A) a review of such party’s
activities during the preceding calendar year or portion thereof and of such
party’s performance under this HELOC Servicing Agreement, or such other
applicable agreement in the case of any Servicing Function Participant engaged
by it, has been made under such officer’s supervision and (B) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this Servicing Agreement or such other applicable agreement
in
the case of any Servicing Function Participant engaged by it, in all material
respects throughout such year or portion thereof, 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 thereof Promptly
after receipt of each such Officer’s Certificate, the Sponsor and
HELOC
Back-Up Servicer shall review such Officer’s Certificate and, if applicable,
consult with each such party,
as
applicable, as to the nature of any failures by such party, in the fulfillment
of any of such party’s obligations hereunder or, in the case of any Servicing
Function Participant engaged by it, under such other applicable
agreement.
(b) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the HELOC Servicer to comply timely with this Section 4.06 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the HELOC Back-Up Servicer shall,
at the
direction of the Sponsor, terminate all the rights and obligations of the HELOC
Servicer under this HELOC Servicing Agreement and in and to the Mortgage Loans
and the proceeds thereof without compensating the HELOC Servicer for the same.
This paragraph shall supersede any other provision in this HELOC Servicing
Agreement or any other agreement to the contrary.
(c) Unless
available on the HELOC Servicer’s or the Securities Administrator’s website,
copies of such HELOC Servicer annual statements of compliance shall be provided
to any Noteholder
upon request, by the HELOC Servicer or by the HELOC
Back-Up Servicer at the HELOC Servicer’s expense if the HELOC Servicer failed to
provide such copies (unless (i) the HELOC Servicer shall have failed to provide
the HELOC Back-Up Servicer with such statement or (ii) the HELOC Back-Up
Servicer shall be unaware of the HELOC Servicer’s failure to provide such
statement).
Section
4.07 Report
on Assessments of Compliance and Attestation.
(a) By
March
15 of each year, commencing in March 2007, the HELOC Servicer, at its own
expense, shall furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the HELOC
Back-Up Servicer, the Securities Administrator and the Sponsor, a report on
an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria with respect to the prior calendar year, including, if there has been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) No
later
than the end of each calendar year for which a Form 10-K is required to be
filed, the HELOC Servicer shall forward to the HELOC Back-Up Servicer and the
Securities Administrator the name of each Servicing Function Participant engaged
by it and what Relevant Servicing Criteria will be addressed in the report
on
assessment of compliance prepared by such Servicing Function Participant. When
the HELOC Servicer (or any Servicing Function Participant engaged by it) submits
its assessments to the HELOC Back-Up Servicer and Securities Administrator,
it
shall also at such time include the assessment (and attestation pursuant to
Section 4.08) of each Servicing Function Participant engaged by it.
(c) The
HELOC
Servicer shall not be required to deliver any such assessments until April
15 in
any given year so long as it has received written confirmation from the
Securities Administrator that a Form 15 relating to the automatic suspension
of
reporting in respect of the Issuing Entity under the Exchange Act has been
filed.
(d) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the HELOC Servicer to comply timely with this Section 4.07 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the HELOC Back-Up Servicer shall, at the direction of the Sponsor,
terminate all the rights and obligations of the HELOC Servicer under this HELOC
Servicing Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the HELOC Servicer for the same. This paragraph shall
supersede any other provision in this HELOC Servicing Agreement or any other
agreement to the contrary.
Section
4.08 Attestation
Reports.
(a) By
March
15 of each year, commencing in March 2007, the HELOC Servicer, at its own
expense, shall cause, and each such party shall cause any Servicing Function
Participant engaged by it to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the HELOC Servicer
or
such other Servicing Function Participants, as the case may be) and that is
a
member of the American Institute of Certified Public Accountants to furnish
a
report to the HELOC Back-Up Servicer, the Securities Administrator and the
Sponsor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
(b) None
of
the HELOC Servicer or any Servicing Function Participant engaged by it shall
be
required to deliver or cause the delivery of such reports until April 15 in
any
given year so long as it has received written confirmation from from the
Securities Administrator that a Form 15 relating to the automatic suspension
of
reporting in respect of the Issuing Entity under the Exchange Act has been
filed.
(c) For
so
long as the Issuing Entity is subject to Exchange Act reporting requirements,
failure of the HELOC Servicer to comply timely with this Section 4.08 shall
be
deemed a Servicing Default, automatically, without notice and without any cure
period, and the HELOC Back-Up Servicer shall, at the direction of the Sponsor,
terminate all the rights and obligations of the HELOC Servicer under this HELOC
Servicing Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the HELOC Servicer for the same. This paragraph shall
supersede any other provision in this HELOC Servicing Agreement or any other
agreement to the contrary.
Section
4.09 Annual
Certification.
(a) The
HELOC
Servicer shall and shall cause any Servicing Function Participant engaged by
such party to, provide to the Depositor, by March 15 of each year in which
the
Issuing Entity is subject to the reporting requirements of the Exchange Act
and
otherwise within a reasonable period of time upon request, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit C,
upon which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. In the event the HELOC Servicer or any Servicing Function
Participant engaged by such party, is terminated or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may
be,
such party shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 4.09 with respect to the period of time it was subject
to this HELOC Servicing Agreement or any other applicable agreement, as the
case
may be.
Section
4.10 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 4.06, 4.07,
34.08 and 4.09 of this HELOC Servicing Agreement is to facilitate compliance
by
the Issuing Entity, the Sponsor, the HELOC Back-Up Servicer and the Securities
Administrator with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance issued by the Commission
in
respect of the requirements of Regulation AB, (c) the parties shall comply
with
requests made by the Sponsor for delivery of additional or different information
as the Sponsor may determine in good faith is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this HELOC Servicing
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
Section
4.11 Indemnification.
The
HELOC
Servicer shall indemnify and hold harmless the Sponsor, the Issuing Entity,
the
HELOC Back-Up Servicer, the Securities Administrator, the Indenture Trustee
and
their respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the HELOC Servicer’s obligations under this Section 4.09
hereof, (ii) any material misstatement any material misstatement or material
omission in any information, data or materials required to be contained in
the
reports provided under this Sections 4.06, 4.07, 4.08 and 4.09, or (iii) or
the
HELOC Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
ARTICLE
V
THE
HELOC
SERVICER
Section
5.01 Liability
of the HELOC Servicer.
The
HELOC Servicer shall be liable in accordance herewith only to the extent of
the
obligations specifically imposed upon and undertaken by the HELOC Servicer
herein.
Section
5.02 Merger
or Consolidation of or Assumption of the Obligations of the HELOC
Servicer.
Any
corporation into which the HELOC Servicer may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the HELOC Servicer shall be a party, or
any
corporation succeeding to the business of the HELOC Servicer, shall be the
successor of the HELOC Servicer hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided,
however,
that
the successor or surviving Person to the HELOC Servicer shall be qualified
to
sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac.
The
HELOC
Servicer may assign its rights and delegate its duties and obligations under
this HELOC Servicing Agreement; provided,
that
the Person accepting such assignment or delegation (which may include Bank
of
America, N.A. or any affiliate of Bank of America, N.A.) shall be a Person
which
is qualified to service mortgage loans on behalf of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
and (except in the case of Bank of America, N.A. or any affiliate of Bank of
America, N.A.) is reasonably satisfactory to the HELOC Back-Up Servicer, is
willing to service the HELOC Mortgage Loans and executes and delivers to the
HELOC Back-Up Servicer, the Issuing Entity and the Indenture Trustee an
agreement, in form and substance reasonably satisfactory to the HELOC Back-Up
Servicer, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the HELOC Servicer under this HELOC Servicing Agreement;
provided,
further,
that
each Rating Agency’s rating, without regard to the Policy, of the applicable
Grantor Trust Certificates or the Class V-A Notes in effect immediately prior
to
such assignment and delegation will not be qualified, reduced, or withdrawn
as a
result of such assignment and delegation (as evidenced by a letter to such
effect from each Rating Agency) or considered to be below investment grade,
and
provided further that, at any time that the Grantor Trust Certificates or the
Class V-A Notes remain outstanding and no Servicing Default shall have occurred
and be continuing, such assignment and delegation shall not be made without
prior written consent from the Credit Enhancer.
Section
5.03 Limitation
on Liability of the HELOC Servicer and Others.
The
HELOC Servicer shall immediately notify the Indenture Trustee if a claim is
made
by a third party with respect to this Agreement or the HELOC Mortgage Loans,
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered in respect of such claim. The HELOC
Servicer agrees that it will not enter into the settlement of any such claim
without the consent of the Credit Enhancer. The HELOC Servicer also agrees
that
it will not enter into the settlement of any such claim if such settlement
would
materially and adversely affect the interests of the Noteholders. The HELOC
Servicer shall be entitled to reimbursement of any such costs and expenses
from
funds in the Collection Account, unless such claim relates to a matter for
which
the HELOC Servicer is required to indemnify the Issuing Entity, the Indenture
Trustee or the HELOC Back-Up Servicer pursuant to Section 5.06. Neither the
HELOC Servicer nor any of the directors or officers or employees or agents
of
the HELOC Servicer shall be under any liability to the HELOC Back-Up Servicer,
the Issuing Entity and the Indenture Trustee for any action taken or for
refraining from the taking of any action in good faith pursuant to this HELOC
Servicing Agreement, provided,
however,
that
this provision shall not protect the HELOC Servicer or any such Person against
any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder. The HELOC Servicer and any director or officer or employee or agent
of the HELOC Servicer may rely in good faith on any document of any kind
prima facie
properly
executed and submitted by any Person respecting any matters arising hereunder.
The HELOC Servicer’s right to indemnity or reimbursement pursuant to this
Section 5.03 shall survive any resignation or termination of the HELOC Servicer
pursuant to Sections 5.04 or 6.01 with respect to any losses, expenses, costs
or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination).
Section
5.04 HELOC
Servicer Not to Resign.
Subject
to the provisions of Section 5.02, the HELOC Servicer shall not resign from
the
obligations and duties hereby imposed on it except (i) upon determination that
the performance of its obligations or duties hereunder are no longer permissible
under applicable law (any such determination permitting the resignation of
the
HELOC Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the HELOC Back-Up Servicer) or (ii) upon satisfaction of the
following conditions: the HELOC Servicer has proposed a successor servicer
to
the HELOC Back-Up Servicer in writing and such proposed successor servicer
is
reasonably acceptable to the HELOC Back-Up Servicer; provided,
however,
that no
such resignation by the HELOC Servicer shall become effective until such
successor servicer shall have assumed the HELOC Servicer’s responsibilities and
obligations hereunder or another successor HELOC Servicer has been appointed
in
accordance with Section 6.02 and has accepted such appointment. Any such
resignation shall not relieve the HELOC Servicer of responsibility for any
of
the obligations specified in Sections 6.01 and 6.02 as obligations that survive
the resignation or termination of the HELOC Servicer. The HELOC Servicer shall
have no claim (whether by subrogation or otherwise) or other action against
any
Noteholder for any amounts paid by the HELOC Servicer pursuant to any provision
of this HELOC Servicing Agreement.
Section
5.05 Delegation
of Duties.
In the
ordinary course of business, the HELOC Servicer at any time may delegate any
of
its duties hereunder to any Person, including any of its Affiliates, who agrees
to conduct such duties in accordance with standards comparable to those with
which the HELOC Servicer complies pursuant to Section 3.01. Such delegation
shall not relieve the HELOC Servicer of its liabilities and responsibilities
with respect to such duties and shall not constitute a resignation within the
meaning of Section 5.04.
Section
5.06 Indemnification.
(a)
The
HELOC Servicer agrees to indemnify each of the HELOC Back-Up Servicer, the
Issuing Entity and the Indenture Trustee for and to hold each of the HELOC
Back-Up Servicer, the Issuing Entity and the Indenture Trustee harmless against,
any claim, tax, penalty, loss, liability or expense of any kind whatsoever,
incurred without negligence or willful misconduct on its part, arising out
of,
or in connection with, the failure by the HELOC Servicer to perform its duties
in compliance with this HELOC Servicing Agreement. In addition to the
indemnification set forth in the previous sentence, the HELOC Servicer shall
indemnify and hold each of the HELOC Back-Up Servicer, the Issuing Entity and
the Indenture Trustee harmless from and against any and all claims, losses,
damages, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, fees and expenses resulting from or related to any act
or
omission to act of any prior servicer, owner or originator of a HELOC Mortgage
Loan or Mortgaged Property (or any other Person) prior to the transfer of
servicing to the HELOC Back-Up Servicer in accordance with Section 6.02
hereunder, provided that:
(i) with
respect to any such claim, the HELOC Back-Up Servicer, the Indenture Trustee
or
the Issuing Entity, as applicable, shall have given the HELOC Servicer written
notice thereof promptly after the HELOC Back-Up Servicer, the Issuing Entity
or
the Indenture Trustee, as applicable, shall have actual knowledge thereof,
it
being understood that failure to give such notice shall not relieve the HELOC
Servicer of its indemnification obligations hereunder;
(ii) while
maintaining control over its own defense, the HELOC Back-Up Servicer, the
Issuing Entity or the Indenture Trustee, as applicable, shall cooperate and
consult fully with the HELOC Servicer in preparing such defense;
and
(iii) notwithstanding
anything in this HELOC Servicing Agreement to the contrary, the HELOC Servicer
shall not be liable for settlement of any claim by the HELOC Back-Up Servicer,
the Issuing Entity or the Indenture Trustee, as applicable, entered into without
the prior consent of the HELOC Servicer, which consent shall not be unreasonably
withheld.
(b) The
HELOC
Servicer agrees to indemnify the Owner Trustee and the Indenture
Trustee for,
and
to hold the Owner Trustee and the Indenture Trustee, harmless against, any
claim, tax, penalty, loss, liability or expense of any kind whatsoever, in
connection with their respective duties under any of the Basic Documents, except
to the extent that such claim, tax, penalty, loss liability or expense is (i)
caused by the Owner Trustee’s or the Indenture Trustee’s, as the case may be,
own willful misconduct, gross negligence or bad faith or grossly negligent
failure to act or (ii) incurred as a result of the inaccuracy of any
representation or warranty contained in Section 6.03 of the Trust Agreement
expressly made by the Owner Trustee or the Indenture Trustee, as the case may
be.
(c) No
termination of this HELOC Servicing Agreement or the resignation or removal
of
the HELOC Servicer shall affect the obligations created by this Section 5.06
of
the HELOC Servicer to indemnify the HELOC Back-Up Servicer, the Issuing Entity
and the Indenture Trustee under the conditions and to the extent set forth
herein. This section shall survive the termination of this HELOC Servicing
Agreement and the resignation or removal of the HELOC Servicer and the Indenture
Trustee. Any amounts to be paid by the HELOC Servicer pursuant to this
Subsection may not be paid from the Trust Estate.
Section
5.07 Duties
of the HELOC Servicer With Respect to the Indenture.
(a)
The
HELOC Servicer shall take all appropriate action that is the duty of the Issuing
Entity to take with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(i) causing
the preparation of the Notes (for execution by the Owner Trustee) upon their
initial issuance and causing the preparation of an Issuing Entity Request (for
execution by the Owner Trustee) for delivery to the Securities Administrator
regarding authentication of the Notes (Section 2.02);
(ii) causing
the preparation of an Issuing Entity Request and Officer’s Certificate (and
executing the same on behalf of the Issuing Entity) and the obtaining of an
Opinion of Counsel and Independent Certificates, if necessary, for the release
of the Collateral (Section 8.05);
(iii) causing
the preparation of Issuing Entity Requests (and executing the same on behalf
of
the Issuing Entity) and the obtaining of Opinions of Counsel with respect to
the
execution of supplemental indentures;
(iv) causing
the preparation and obtaining or filing of the instruments, opinions and
certificates and other documents required for the release of collateral
(Sections 8.05 and 10.01);
(v) the
delivery of notice to the Indenture Trustee and the Rating Agencies of each
Event of Default under the Indenture (Section 5.01);
(vi) annual
delivery of Opinions of Counsel, in accordance with Section 3.07 of the
Indenture, as to the Trust Estate, and the annual delivery and execution of
the
Officers’ Certificate (Section 3.15);
(vii) causing
the preparation and execution of an Officer’s Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate relating thereto with
respect to any request by the Issuing Entity to the Indenture Trustee to take
any action under the Indenture (Sections 4.10 and 10.01);
(viii) obtaining
and preserving the Issuing Entity’s qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect
the
validity and enforceability of the Indenture, the Notes, the HELOC Mortgage
Loans and each other instrument and agreement included in the Trust Estate
(Section 3.04).
(b) In
addition to the duties of the HELOC Servicer set forth above, the HELOC Servicer
shall prepare for execution by the Issuing Entity or shall cause the preparation
by other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuing
Entity to prepare, file or deliver pursuant to the Basic Documents, and at
the
request of the Owner Trustee or the Indenture Trustee (it being understood
that
in no event is the Indenture Trustee obligated to make such request or give
such
direction) shall take all appropriate action that it is the duty of the Issuing
Entity to take pursuant to the Basic Documents. In accordance with the
directions of the Owner Trustee or Indenture Trustee (it being understood that
in no event is the Indenture Trustee obligated to make such request or give
such
direction), the HELOC Servicer shall administer, perform or supervise the
performance of such other activities in connection with the Collateral
(including the Basic Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee or the Indenture
Trustee (it being understood that in no event is the Indenture Trustee obligated
to make such request or give such direction) and are reasonably within the
capability of the HELOC Servicer.
Section
5.08 Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Indenture Trustee is required to obtain, verify and record
certain information relating to individuals and entities with maintain a
business relationship with the Indenture Trustee. Accordingly, each of the
parties agrees to provide to the Indenture Trustee upon its request from time
to
time such party’s complete name, address, tax identification number and such
other identifying information together with copies of such party’s constituting
documentation, securities disclosure document and such other identifying
documentation as may be available for such party.
ARTICLE
VI
DEFAULT
Section
6.01 Servicing
Default.
If any
one of the following events (each, a AServicing
Default”) shall occur and be continuing:
(i) Any
failure by the HELOC Servicer to deposit in the Collection Account or Payment
Account any deposit required to be made under the terms of this HELOC Servicing
Agreement which continues unremedied for a period of one (1) Business Day after
the date upon which written notice of such failure shall have been given to
the
HELOC Servicer by the Securities Administrator, the HELOC Back-Up Servicer
or
the Credit Enhancer; or
(ii) Failure
on the part of the HELOC Servicer duly to observe or perform in any material
respect any representation or warranty of the HELOC Servicer or any other
covenants or agreements of the HELOC Servicer (including the making of Servicing
Advances) set forth in this HELOC Servicing Agreement, which failure, in each
case, materially and adversely affects the interests of the Class V-A
Noteholders and which continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same to be remedied,
and stating that such notice is a ANotice
of
Default” hereunder, shall have been given to the HELOC Servicer by the Indenture
Trustee, the HELOC Back-Up Servicer or the Credit Enhancer; or
(iii) The
entry
against the HELOC Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for appointment of
a
trustee, conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(iv) The
HELOC
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the HELOC Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court, agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the HELOC Servicer and such decree or order shall have
remained in force undischarged, unbonded or unstayed for a period of 60 days;
or
the HELOC Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
then,
and
in every such case, so long as a Servicing Default shall not have been remedied
by the HELOC Servicer, the Indenture Trustee or the HELOC Back-Up Servicer
may,
or the Indenture Trustee at the written direction of the holders of 51% of
the
aggregate Note Principal Balance shall by notice then given to the HELOC
Servicer, terminate all of the rights and obligations of the HELOC Servicer
as
servicer under this HELOC Servicing Agreement other than its right to receive
servicing compensation and expenses for servicing the HELOC Mortgage Loans
hereunder during any period prior to the date of such termination and the HELOC
Back-Up Servicer may exercise any and all other remedies available at law or
equity. Any such notice to the HELOC Servicer shall also be given to the Credit
Enhancer, the Company and the Issuing Entity. On or after the receipt by the
HELOC Servicer of such written notice, all authority and power of the HELOC
Servicer under this HELOC Servicing Agreement, whether with respect to the
Class
V-A Notes or the HELOC Mortgage Loans or otherwise, shall pass to and be vested
in the HELOC Back-Up Servicer, pursuant to and under this Section 6.01; and,
without limitation, the HELOC Back-Up Servicer is hereby authorized and
empowered to execute and deliver, on behalf of the HELOC Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to 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 of each HELOC Mortgage Loan and related documents, or otherwise.
Notwithstanding the foregoing, the parties hereto and the Securityholders by
their acceptance of any Security, acknowledge and agree that there will be
a
period of transition before actual servicing functions can be fully transferred
to the HELOC Back-Up Servicer, as successor HELOC Servicer, or to a successor
HELOC Servicer appointed by the HELOC Back-Up Servicer pursuant to the
provisions hereof, provided,
that the HELOC Back-Up Servicer shall use its reasonable best efforts to succeed
to actual servicing functions or find a successor HELOC Servicer as promptly
as
possible.
The
HELOC Servicer agrees to cooperate with the HELOC Back-Up Servicer in effecting
the termination of the responsibilities and rights of the HELOC Servicer
hereunder, including, without limitation, the transfer to the HELOC Back-Up
Servicer or the successor HELOC Servicer for administration by it of (i) the
property and amounts which are then or should be part of the Trust Estate or
which thereafter become part of the Trust Estate; (ii) originals or copies
of
all documents of the HELOC Servicer reasonably requested by the HELOC Back-Up
Servicer to enable it to assume the HELOC Servicer’s duties thereunder and under
the HELOC Subservicing Agreements; (iii) the rights and obligations of the
HELOC
Servicer under the HELOC Subservicing Agreements with respect to the HELOC
Mortgage Loans; (iv) all cash amounts which shall at the time be deposited
by
the HELOC Servicer or should have been deposited to the Collection Account
or
the Payment Account or thereafter be received with respect to the HELOC Mortgage
Loans; and (v) all costs or expenses associated with the complete transfer
of
all servicing data and the completion, correction or manipulation of such
servicing data as may be required by the HELOC Back-Up Servicer or any successor
HELOC Servicer to correct any errors or insufficiencies in the servicing data
or
otherwise to enable the HELOC Back-Up Servicer or successor HELOC Servicer
to
service the HELOC Mortgage Loans properly and effectively. All
reasonable costs and expenses (including, but not limited to, attorneys’ fees
and disbursements) incurred by the HELOC Back-Up Servicer or a successor HELOC
Servicer in connection with its succession as HELOC Servicer, or
the
Indenture Trustee in accordance with such succession (as provided
below),
including amending this HELOC Servicing Agreement to reflect such succession
as
HELOC Servicer pursuant to this Section 6.01 shall be paid by the predecessor
HELOC Servicer (or if the predecessor HELOC Servicer is the HELOC Back-Up
Servicer, the initial HELOC Servicer) upon presentation of reasonable
documentation of such costs and expenses.
The
Trustee or its affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Eligible Investments, (ii) using
affiliates to effect transactions in certain Eligible Investments and (iii)
effecting transactions in certain Eligible Investments. Such compensation is
not
payable or reimbursable under this Agreement.
Notwithstanding
any termination of the activities of the HELOC Servicer hereunder, the HELOC
Servicer shall be entitled to receive, out of any late collection of a payment
on a HELOC Mortgage Loan which was due prior to the notice terminating the
HELOC
Servicer’s rights and obligations hereunder and received after such notice, that
portion to which the HELOC Servicer would have been entitled pursuant to
Sections 3.07 and 3.15 as well as its HELOC Servicing Fee in respect thereof,
and any other amounts payable to the HELOC Servicer hereunder the entitlement
to
which arose prior to the termination of its activities hereunder.
The
HELOC
Servicer shall immediately notify the HELOC Back-Up Servicer in writing of
any
Servicing Default.
In
addition, upon the occurrence of any HELOC Servicer Termination Event and upon
the direction of the Credit Enhancer in connection therewith, the HELOC Back-Up
Servicer shall terminate the rights and responsibilities of the HELOC Servicer
hereunder and shall appoint a successor HELOC Servicer in accordance with the
provisions of this Section 6.02; provided,
however, that the foregoing provision shall not apply in the event that the
HELOC Subservicer is rated “SQ2-” or better by ▇▇▇▇▇’▇ on any date, or in the
event of the appointment of the HELOC Back-Up Servicer or other successor as
successor HELOC Servicer in accordance with Section 6.02 hereof, the HELOC
Servicer Termination Event shall not apply.
Section
6.02 HELOC
Back-Up Servicer to Act; Appointment of Successor.
(a)
As
promptly as possible following the time the HELOC Servicer sends a notice
pursuant to clause (i) of Section 5.04, the HELOC Back-Up Servicer, or other
successor appointed in accordance with this Section 6.02, shall be the successor
in all respects to the HELOC Servicer in its capacity as HELOC Servicer under
this HELOC Servicing Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the HELOC Servicer by the terms and provisions
hereof, including but not limited to the provisions of Article V. Nothing in
this HELOC Servicing Agreement shall be construed to permit or require the
HELOC
Back-Up Servicer or any other successor HELOC Servicer to (i) be responsible
or
accountable for any act or omission of the predecessor HELOC Servicer, (ii)
require or obligate the HELOC Back-Up Servicer, in its capacity as successor
HELOC Servicer, to purchase, repurchase or substitute any HELOC Mortgage Loan,
(iii) fund any losses on any Eligible Investment directed by any other HELOC
Servicer, or (iv) be responsible for the representations and warranties of
the
HELOC Servicer, except as provided herein. As compensation therefor, the HELOC
Back-Up Servicer shall be entitled to such compensation as the HELOC Servicer
would have been entitled to hereunder if no such notice of termination had
been
given. Notwithstanding above, (i) if the HELOC Back-Up Servicer is unwilling
to
act as successor HELOC Servicer, or (ii) if the HELOC Back-Up Servicer is
legally unable so to act, the HELOC Back-Up Servicer may (in the situation
described in clause (i)) or shall (in the situation described in clause (ii))
appoint or petition a court of competent jurisdiction to appoint any established
housing and home finance institution, bank or other mortgage loan servicer
having a net worth of not less than $10,000,000 as the successor to the HELOC
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the HELOC Servicer hereunder; provided that at any
time
that the Class V-A Notes remain outstanding and no Servicing Default shall
have
occurred and be continuing, the appointment of any such successor HELOC Servicer
shall not be made without prior written consent from the Credit Enhancer.
Pending appointment of a successor to the HELOC Servicer hereunder, unless
the
HELOC Back-Up Servicer is prohibited by law from so acting or is unwilling
to
act as such, the HELOC Back-Up Servicer shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on HELOC
Mortgage Loans in an amount equal to the compensation which the HELOC Servicer
would otherwise have received pursuant to Section 3.15 (or such lesser
compensation as the HELOC Back-Up Servicer and such successor shall agree).
appointment of a successor HELOC Servicer shall not affect any liability of
the
predecessor HELOC Servicer which may have arisen under this HELOC Servicing
Agreement prior to its termination as HELOC Servicer (including, without
limitation, the obligation to pay any deductible under an insurance policy
pursuant to Section 3.11 or to indemnify the HELOC Back-Up Servicer pursuant
to
Section 5.06), nor shall any successor HELOC Servicer be liable for any acts
or
omissions of the predecessor HELOC Servicer or for any breach by such HELOC
Servicer of any of its representations or warranties contained herein or in
any
related document or agreement. The HELOC Back-Up Servicer and such successor
shall take such action, consistent with this HELOC Servicing Agreement, as
shall
be necessary to effectuate any such succession.
In
connection with the termination or resignation of the HELOC Servicer hereunder,
either (i) the successor HELOC Servicer, including the HELOC Back-Up Servicer
if
the HELOC Back-Up Servicer is acting as successor HELOC Servicer, shall
represent and warrant that it is a member of MERS in good standing and shall
agree to comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the HELOC Mortgage Loans that are registered
with MERS, in which case the predecessor HELOC Servicer shall cooperate with
the
successor HELOC Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor HELOC Servicer as necessary under MERS’
rules and regulations, or (ii) the predecessor HELOC Servicer shall cooperate
with the successor HELOC Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Indenture Trustee and to execute and deliver such other notices, documents
and other instruments as may be necessary or desirable to effect a transfer
of
such HELOC Mortgage Loan or servicing of such HELOC Mortgage Loan on the
MERS7
System
to the successor HELOC Servicer. The predecessor HELOC Servicer shall file
or
cause to be filed any such assignment in the appropriate recording office.
The
predecessor HELOC Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this Section 6.02. To the
extent these fees and costs are not paid by the HELOC Servicer and are incurred
by any successor HELOC Servicer, such fees and costs will be reimbursable to
the
successor HELOC Servicer by the Trust. The successor HELOC Servicer shall cause
such assignment to be delivered to the Indenture Trustee promptly upon receipt
of the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
(b) Any
successor, including the HELOC Back-Up Servicer, to the HELOC Servicer as
servicer shall during the term of its service as servicer (i) continue to
service and administer the HELOC Mortgage Loans for the benefit of the
Securityholders, (ii) maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as HELOC
Servicer hereunder and a fidelity bond in respect of its officers, employees
and
agents to the same extent as the HELOC Servicer is so required pursuant to
Section 3.11(g).
(c) Any
successor HELOC Servicer, including the HELOC Back-Up Servicer, shall not be
deemed to be in default or to have breached its duties hereunder if the
predecessor HELOC Servicer shall fail to deliver any required deposit to the
Collection Account or otherwise cooperate with any required servicing transfer
or succession hereunder.
(d) Notwithstanding
anything else herein to the contrary, in no event shall the HELOC Back-Up
Servicer be liable for any servicing fee or any differential in amount of the
servicing fee paid hereunder and the amount necessary to induce any successor
HELOC Servicer to act as a successor HELOC Servicer under this HELOC Servicing
Agreement and the transactions set forth or provided for herein.
Section
6.03 Reserved.
Section
6.04 Waiver
of Defaults.
The
HELOC Back-Up Servicer, with the consent of the Credit Enhancer, may waive
any
default by the HELOC Servicer in the performance of its obligations hereunder
and the consequences thereof, except a default in the making of or the causing
to be made any required distribution. Upon any such waiver of a past default,
such default shall be deemed to cease to exist, and any Servicing Default
arising therefrom shall be deemed to have been timely remedied for every purpose
of this HELOC Servicing Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
Section
7.01 Amendment.
This
HELOC Servicing Agreement may be amended from time to time by the parties
hereto.
Section
7.02 GOVERNING
LAW.
THIS
HELOC SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if when delivered to:
(a) in
the
case of the HELOC Back-Up Servicer:
GMAC
Mortgage Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) in
the
case of the HELOC Servicer: American Home Mortgage Acceptance, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
| (c) |
in
the case of Rating Agencies: Standard & Poor’s, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
|
▇▇
▇▇▇▇▇
▇▇▇▇▇▇ - 41st
Floor
Attention:
Asset Backed Surveillance Group
▇▇▇▇▇’▇
Investors Service, Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
| (d) |
in
the case of the Owner Trustee:
|
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
| (e) |
in
the case of the Issuing Entity, to American Home Mortgage Investment
Trust
2006-2: c/o American Home Mortgage Securities
LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
(f) in
the
case of the Indenture Trustee: its Corporate Trust Office
(g) in
the
case of the Credit Enhancer,
CIFG
Assurance North America, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(h) in
the
case of the Securities Administrator:
▇▇▇▇▇
Fargo Bank, N.A.
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇
, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or,
in
the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
21045) (Attention: Corporate Trust Services - AHMIT 2006-2), facsimile no.:
(▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be furnished to the
other
parties hereto in writing;)
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid,
at
the address of such Noteholder as shown in the Note Register.
The
HELOC
Servicer shall designate a Person who shall be available to the Credit Enhancer
to provide reasonable access to information regarding the HELOC Mortgage
Loans.
Section
7.04 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this HELOC
Servicing Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this HELOC Servicing
Agreement and shall in no way affect the validity or enforceability of the
other
provisions of this HELOC Servicing Agreement or of the Class V-A Notes or the
rights of the Class V-A Noteholders thereof.
Section
7.05 Third-Party
Beneficiaries.
This
HELOC Servicing Agreement will inure to the benefit of and be binding upon
the
parties hereto, the Class V-A Noteholders, the Credit Enhancer, the Owner
Trustee, the Securities Administrator and their respective successors and
permitted assigns. Except as otherwise provided in this HELOC Servicing
Agreement, no other Person will have any right or obligation
hereunder.
Section
7.06 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
7.07 Effect
of Headings and Table of Contents.
Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section
7.08 Termination.
The
respective obligations and responsibilities of the HELOC Servicer and the HELOC
Back-Up Servicer created hereby shall terminate upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof.
Section
7.09 No
Petition.
The
HELOC Servicer, by entering into this HELOC Servicing Agreement, hereby
covenants and agrees that it will not at any time institute against the Issuing
Entity, or join in any institution against the Issuing Entity, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations of the Issuing Entity. This section shall
survive the satisfaction and discharge of the Indenture by one
year.
Section
7.10 No
Recourse.
The
HELOC Servicer acknowledges that no recourse may be had against the Issuing
Entity, except as may be expressly set forth in this HELOC Servicing
Agreement.
Section
7.11 Consent
to Jurisdiction.
The
parties to this Agreement each hereby irrevocably submits to the nonexclusive
jurisdiction of any New York State or federal court sitting in the Borough
of
Manhattan in The City of New York in any action or proceeding arising out of
or
relating to this HELOC Servicing Agreement or the transactions contemplated
hereby, and all such parties hereby irrevocably agree that all claims in respect
of such action or proceeding may be heard and determined in such New York State
or federal court and hereby irrevocably waive, to the fullest extent that they
may legally do so, the defense of an inconvenient forum to the maintenance
of
such action or proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS HELOC
SERVICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
7.12 Certain
Terms Concerning Indenture Trustee.
The
Indenture Trustee is entering into this Agreement not in its individual capacity
but solely in its capacity as trustee under the Indenture and all
indemnifications and protections from liability provided to the Indenture
Trustee under the Indenture shall, with out limitation, extend to the Indenture
Trustee hereunder. The Indenture Trustee shall have no obligations or duties
under this Agreement other than those duties expressly set forth herein as
duties on its part to be performed hereunder, and no implied duties shall be
read into this Agreement against the Indenture Trustee. The Indenture Trustee
is
not responsible for the terms of this Agreement or their sufficiency for any
purpose.
Section
7.13 Third
Party Beneficiary.
For
purposes of this Agreement, any Credit Enhancer shall be considered a third
party beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Credit Enhancer herein as if it were a direct party to this
Agreement.
IN
WITNESS WHEREOF, the HELOC Back-Up Servicer, the Issuing Entity, the Indenture
Trustee, the Sponsor and the HELOC Servicer have caused this HELOC Servicing
Agreement to be duly executed by their respective officers or representatives
all as of the day and year first above written.
GMAC MORTGAGE CORPORATION
as
HELOC Back-Up Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as
HELOC SERVICER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President, General Gounsel, & Secretary
|
as
Issuing Entity
|
|
|
WILMINGTON
TRUST COMPANY, not in its individual capacity,
but
solely as Owner Trustee
|
|
|
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title:
Assistant Vice President
|
|
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS, not in its
individual
capacity but solely as Indenture Trustee
|
|
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Title:
Authorized Signer
|
|
|
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Title:
Vice President
|
|
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as
Sponsor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President, General Gounsel, & Secretary
EXHIBIT
A
HELOC
MORTGAGE LOAN SCHEDULE
(FILED
MANUALLY)
EXHIBIT
B
FORM
OF
REQUEST FOR RELEASE
DATE:
TO:
RE:REQUEST
FOR RELEASE OF DOCUMENTS
In
connection with your administration of the HELOC Mortgage Loans, we request
the
release of the Mortgage File described below.
HELOC
Servicing Agreement (AHELOC
Servicing Agreement”) Dated:
Series
#:
Account
#:
Pool
#:
Loan
#:
Borrower
Name(s):
Reason
for Document Request: (circle one) Mortgage Loan Prepaid in
Full
Other
Mortgage
Loan Repurchased
Please
deliver the Mortgage File to
AWe
hereby
certify that all amounts received or to be received in connection with such
payments which are required to be deposited have been deposited in the
Collection Account as provided in the HELOC Servicing Agreement.”
[Name
of
HELOC Servicer]
Authorized
Signature
******************************************************************************************************************************************
TO
INDENTURE TRUSTEE: Please acknowledge this request (if requested by us), and
check off documents being enclosed with a copy of this form. You should retain
this form for your files in accordance with the terms of the HELOC Servicing
Agreement.
Enclosed
Documents: [_] Promissory
Note
[_]
Mortgage or Deed of Trust
[_]
Assignment(s) of Mortgage or Deed of Trust
[_]
Title Insurance Policy
_______________________
[_] Other:
Name
_______________________
Title
_______________________
Date
EXHIBIT
C
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE HELOC SERVICER
I,
[identify the certifying individual], a [title] of ______, (the “HELOC
Servicer”), hereby certify to the HELOC Back-Up Servicer, American Home Mortgage
Securities LLC and American Home Mortgage Acceptance, Inc. and their respective
officers, directors and affiliates, and with the knowledge and intent that
they
will rely upon this certification, that:
|
(1)
|
I
have reviewed the servicer compliance statement of the HELOC Servicer
provided in accordance with Section 4.06 of the HELOC Servicing Agreement
and Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the HELOC Servicer compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”),
provided in accordance with Section 4.08 of the HELOC Servicing Agreement,
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 HELOC Servicer during
200[ ]
that were delivered by the HELOC Servicer to the HELOC Back-Up Servicer
pursuant to the HELOC Servicing Agreement (collectively, the “Servicer
Servicing Information”);
|
|
(2)
|
Based
on my knowledge, 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
with
respect to the period of time covered by the Servicer Servicing
Information;
|
|
(3)
|
Based
on my knowledge, all of the Servicer Servicing Information required
to be
provided by the HELOC Servicer under the Servicing Agreement has
been
provided to the HELOC back-Up
Servicer;
|
|
(4)
|
I
am responsible for reviewing the activities performed by the HELOC
Servicer as servicer under the HELOC Servicing 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 HELOC Servicer
has
fulfilled its obligations under the Servicing Agreement in all material
respects; and
|
|
(5)
|
The
Compliance Statement required to be delivered by the HELOC Servicer
pursuant to the Agreement, and the HELOC Servicing Assessment and
Attestation Report required to be provided by the HELOC Servicer
and by
any Servicing Function Participant engaged by the HELOC Servicer
pursuant
to the HELOC Servicing Agreement, have been provided to the HELOC
Back-Up
Servicer. Any material instances of noncompliance described in such
reports have been disclosed to the HELOC Back-Up Servicer. Any material
instance of noncompliance with the Servicing Criteria has been disclosed
in such reports.
|
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the HELOC Servicing Agreement (the “HELOC Servicing Agreement”), dated as of
June 30, 2006, among American Home Mortgage Servicing, Inc., ▇▇▇▇▇ Fargo Bank
National Association, American Home Mortgage Investment Trust 2006-2, American
Home Mortgage Acceptance, Inc., and Deutsche Bank Trust Company
Americas.
|
Date:
|
|
|
[Signature]
|
|
|
[Title]
|
LOAN
LEVEL FORMAT FOR TAPE INPUT,
SERVICER
PERIOD REPORTING
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 ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
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
|
EXHIBIT
E
REPORTING
DATA FOR DEFAULTED LOANS
Data
must
be submitted to ▇▇▇▇▇ Fargo Bank in an Excel
spreadsheet format with fixed field names and data type. The Excel
spreadsheet should be used as a template consistently every month when
submitting data.
Table:
Delinquency
|
Name
|
Type
|
Size
|
||
|
Servicer
Loan #
|
Number
(Double)
|
8
|
||
|
Investor
Loan #
|
Number
(Double)
|
8
|
||
|
Borrower
Name
|
Text
|
20
|
||
|
Address
|
Text
|
30
|
||
|
State
|
Text
|
2
|
||
|
Due
Date
|
Date/Time
|
8
|
||
|
Action
Code
|
Text
|
2
|
||
|
FC
Received
|
Date/Time
|
8
|
||
|
File
Referred to Atty
|
Date/Time
|
8
|
||
|
NOD
|
Date/Time
|
8
|
||
|
Complaint
Filed
|
Date/Time
|
8
|
||
|
Sale
Published
|
Date/Time
|
8
|
||
|
Target
Sale Date
|
Date/Time
|
8
|
||
|
Actual
Sale Date
|
Date/Time
|
8
|
||
|
Loss
Mit Approval Date
|
Date/Time
|
8
|
||
|
Loss
Mit Type
|
Text
|
5
|
||
|
Loss
Mit Estimated Completion Date
|
Date/Time
|
8
|
||
|
Loss
Mit Actual Completion Date
|
Date/Time
|
8
|
||
|
Loss
Mit Broken Plan Date
|
Date/Time
|
8
|
||
|
BK
Chapter
|
Text
|
6
|
||
|
BK
Filed Date
|
Date/Time
|
8
|
||
|
Post
Petition Due
|
Date/Time
|
8
|
||
|
Motion
for Relief
|
Date/Time
|
8
|
||
|
Lift
of Stay
|
Date/Time
|
8
|
||
|
RFD
|
Text
|
10
|
||
|
Occupant
Code
|
Text
|
10
|
||
|
Eviction
Start Date
|
Date/Time
|
8
|
||
|
Eviction
Completed Date
|
Date/Time
|
8
|
||
|
List
Price
|
Currency
|
8
|
||
|
List
Date
|
Date/Time
|
8
|
||
|
Accepted
Offer Price
|
Currency
|
8
|
||
|
Accepted
Offer Date
|
Date/Time
|
8
|
||
|
Estimated
REO Closing Date
|
Date/Time
|
8
|
||
|
Actual
REO Sale Date
|
Date/Time
|
8
|
Items
in bold are MANDATORY FIELDS. We must receive information in those fields every
month in order for your file to be accepted.
The
Action Code Field should show the applicable numeric code to indicate that
a
special action is being taken. The Action Codes are the
following:
12-Relief Provisions
15-Bankruptcy/Litigation
20-Referred
for Deed-in-Lieu
30-Referred
fore Foreclosure
▇▇-▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇-▇▇▇▇
for Sale
71-Third
Party Sale/Condemnation
72-REO-Pending
Conveyance-Pool Insurance claim filed
▇▇▇▇▇
Fargo Bank will accept alternative Action Codes to those above, provided that
the Codes are consistent with industry standards. If Action Codes other than
those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a
description of each of the Action Codes prior to sending the
file.
Description
of Action Codes:
Action
Code 12
- To
report a Mortgage Loan for which the Borrower has been granted relief for curing
a delinquency. The Action Date is the date the relief is expected to end. For
military indulgence, it will be three months after the Borrower's discharge
from
military service.
Action
Code 15
- To
report the Borrower's filing for bankruptcy or instituting some other type
of
litigation that will prevent or delay liquidation of the Mortgage Loan. The
Action Date will be either the date that any repayment plan (or forbearance)
instituted by the bankruptcy court will expire or an additional date by which
the litigation should be resolved.
Action
Code 20
- To
report that the Borrower has agreed to a deed-in-lieu or an assignment of the
property. The Action Date is the date the Servicer decided to pursue a
deed-in-lieu or the assignment.
Action
Code 30
- To
report that the decision has been made to foreclose the Mortgage Loan. The
Action Date is the date the Servicer referred the case to the foreclosure
attorney.
Action
Code 60
- To
report that a Mortgage Loan has been paid in full either at, or prior to,
maturity. The Action Date is the date the pay-off funds were remitted to the
Master Servicer.
Action
Code 65
- To
report that the Servicer is repurchasing the Mortgage Loan. The Action Date
is
the date the repurchase proceeds were remitted to the Master
Servicer.
Action
Code 70
- To
report that a Mortgage Loan has been foreclosed or a deed-in-lieu of foreclosure
has been accepted, and the Servicer, on behalf of the owner of the Mortgage
Loan, has acquired the property and may dispose of it. The Action Date is the
date of the foreclosure sale or, for deeds-in-lieu, the date the deed is
recorded on behalf of the owner of the Mortgage Loan.
Action
Code 71
- To
report that a Mortgage Loan has been foreclosed and a third party acquired
the
property, or a total condemnation of the property has occurred. The Action
Date
is the date of the foreclosure sale or the date the condemnation award was
received.
Action
Code 72
- To
report that a Mortgage Loan has been foreclosed, or a deed-in-lieu has been
accepted, and the property may be conveyed to the mortgage insurer and the
pool
insurance claim has been filed. The Action Date is the date of the foreclosure
sale, or, for deeds-in-lieu, the date of the deed for conventional
mortgages.
The
Loss
Mit Type field should show the approved Loss Mitigation arrangement. The
following are acceptable:
|
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
|
▇▇▇▇▇
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 ▇▇▇▇▇ 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. The
acceptable codes are:
Mortgagor
Tenant
Unknown
Vacant
Exhibit
F
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
(a) 1.
The
numbers on the 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. All line entries must be supported by copies of appropriate
statements, vouchers, receipts, bills, canceled checks, etc., to document the
expense. Entries not properly documented will not be reimbursed to the
Servicer.
13.
The
total
of lines 1 through 12.
(b)
Credits:
14-21.
Complete
as applicable. All line entries must be supported by copies of the appropriate
claims forms, EOBs, HUD-1 and/or other proceeds verification, statements,
payment checks, etc. to document the credit. If the Mortgage Loan is subject
to
a Bankruptcy Deficiency, the difference between the Unpaid Principal Balance
of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal Balance
as
reduced by the Bankruptcy Deficiency should be input on line 20.
|
22.
|
The
total of lines 14 through 21.
|
Please
note:
For
HUD/VA loans, use line (15) for Part A/Initial proceeds and line (16) for Part
B/Supplemental proceeds.
(c) 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
▇▇▇▇▇
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________ Date:
_____________________
Phone:
______________________
Email Address:_____________________
|
Servicer Loan No.
|
Servicer Name
|
Servicer Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._________________________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
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__________________________
|
________________
|
||||||
|
HOA/Condo
Fees_______________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
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
|
________________
|
(18)
|
||||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
||||
|
_________________________________________
|
_________________
|
||||||
|
_________________________________________
|
|
_________________
|
|||||
|
Total
Credits
|
$________________
|
|
(22)
|
||||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
|
(23)
|
||||
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
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 Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets 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 over collateralization, 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
|
||
|
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 Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets 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 pool assets, including any payoffs, made in accordance with the
related
pool asset 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 pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets 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 pool assets (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
pool
asset 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 pool assets 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 pool assets with variable
rates
are computed based on the related pool asset 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 pool asset 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 pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, 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
|
[NAME
OF
OWNER] [NAME OF SUBSERVICER]
Date: _________________________
By: ___________________________
Name:
Title: