Exhibit 99.8
RECONSTITUTED SERVICING AGREEMENT
This is a Reconstituted Servicing Agreement (the "Agreement") made this 1st
day of March, 2007, between Xxxxxxx Xxxxx Mortgage Investors, Inc., having an
address at 4 World Financial Center, 10th Floor, New York, New York 10281 (the
"Depositor") and Wilshire Credit Corporation, having an address at 00000 XX
Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000 ("Wilshire").
In consideration of the mutual promises contained herein the parties hereto
agree that the mortgage loans (the "Mortgage Loans") listed on Exhibit A annexed
hereto (the "Mortgage Loan Schedule") shall be subject to the terms of this
Agreement, and shall be serviced under the terms of the pooling and servicing
agreement dated as of January 1, 2006, among the Depositor, Wilshire and Xxxxx
Fargo Bank, N.A. (the "Underlying Servicing Agreement"), attached hereto as
Exhibit B, and as amended by this Agreement (together with the Underlying
Servicing Agreement, the "Servicing Agreement"). Capitalized terms used herein
but not defined shall have the meanings ascribed to them in the Underlying
Servicing Agreement.
MODIFICATIONS OF CERTAIN PROVISIONS OF THE UNDERLYING SERVICING AGREEMENT
1. The parties hereto agree that the Preliminary Statement, Article II
(other than Section 2.09), Sections 3.17, 3.18, 3.20-3.23 and 4.03 through 4.05,
Article V, Section 7.03, Article VIII, Article IX and Sections 10.04, 10.05,
10.08, 10.10 and 10.11 are inapplicable to this Agreement.
2. For purposes of servicing the Mortgage Loans hereunder, the parties
hereto agree that the provisions of the Underlying Servicing Agreement shall be
modified in the manner set forth on Exhibit C hereto.
WARRANTIES
3. Depositor warrants and represents to, and covenants with, Wilshire that
as of the date hereof:
(a) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) Depositor has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this Agreement is in the ordinary course of Depositor's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of Depositor's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Depositor is now a party or by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Depositor or its property is subject. The execution,
delivery and performance by Depositor of this
Agreement and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on part of
Depositor. This Agreement has been duly executed and delivered by Depositor and,
upon the due authorization, execution and delivery by Wilshire, will constitute
the valid and legally binding obligation of Depositor enforceable against
Depositor in accordance with its terms except as enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is considered in a
proceeding in equity or at law; and
(c) No consent, approval, order or authorization of, or declaration, filing
or registration with, any governmental entity is required to be obtained or made
by Depositor in connection with the execution, delivery or performance by
Depositor of this Agreement, or the consummation by it of the transactions
contemplated hereby.
4. Wilshire warrants and represents to, and covenants with, Depositor that
as of the date hereof:
(a) Wilshire is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) Wilshire has full corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated by this
Agreement is in the ordinary course of Wilshire's business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions of
Wilshire's charter or by-laws or any legal restriction, or any material
agreement or instrument to which Wilshire is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which Wilshire or its property is subject. The execution, delivery
and performance by Wilshire of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Wilshire. This Agreement has been duly executed and
delivered by Wilshire and, upon the due authorization, execution and delivery by
Depositor, will constitute the valid and legally binding obligation of Wilshire
enforceable against Wilshire in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law; and
(c) No consent, approval, order or authorization of, or declaration, filing
or registration with, any governmental entity is required to be obtained or made
by Wilshire in connection with the execution, delivery or performance by
Wilshire of this Agreement, or the consummation by it of the transactions
contemplated hereby.
(d) Wilshire is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Servicer in any
state in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such
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qualification and, in any event, is in compliance with the doing business laws
of any such state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to service the Mortgage Loans in accordance with the terms of
this Agreement and to perform any of its other obligations under this Agreement
in accordance with the terms hereof.
(e) The Servicer is an approved servicer of mortgage loans for Xxxxxx Mae
and is an approved servicer of mortgage loans for Xxxxxxx Mac.
(f) No litigation is pending or, to the best of the Servicer's knowledge,
threatened, against the Servicer that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the ability of the
Servicer to service the Mortgage Loans or to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(g) The Servicer will fully furnish (for the period it services the
Mortgage Loans), 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 on a monthly basis.
RECOGNITION OF MASTER SERVICER
5. From and after the date hereof, Wilshire shall service the Mortgage
Loans in accordance with the Servicing Agreement. It is the intention of
Wilshire and the Depositor that this Agreement will constitute a separate and
distinct servicing agreement between Wilshire and Depositor to the extent of the
Mortgage Loans and shall be binding upon and for the benefit of the respective
successors and assigns of the parties hereto.
6. Wilshire acknowledges that Xxxxx Fargo Bank, N.A. (the "Master Servicer"
and "Securities Administrator") has been appointed as the master servicer of the
Mortgage Loans pursuant to the Pooling and Servicing Agreement, dated as of
March 1, 2007, by and among the Depositor, the Master Servicer, the Securities
Administrator and HSBC Bank USA, National Association (the "Pooling and
Servicing Agreement"). Wilshire shall deliver all reports required to be
delivered under the Servicing Agreement to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A2
7. Wilshire hereby acknowledges that the Master Servicer has the right to
enforce all obligations of Wilshire under the Servicing Agreement acting on
behalf of the MANA 2007-A2 trust formed pursuant to the Pooling and Servicing
Agreement, as owner of the Mortgage Loans. Such rights will include, without
limitation, the right to terminate Wilshire, as servicer under the Servicing
Agreement upon the occurrence of an event of default thereunder, the right to
receive
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all remittances required to be made by Wilshire under the Servicing Agreement,
the right to receive all monthly reports and other data required to be delivered
by Wilshire under the Servicing Agreement, the right to examine the books and
records of Wilshire and the right to exercise certain rights of consent and
approval of the "Trustee" under the Servicing Agreement. Notwithstanding the
foregoing, it is understood that Wilshire shall not be obligated to defend and
indemnify and hold harmless the Master Servicer and the Depositor from and
against any losses, damages, penalties, fines, forfeitures, judgments and any
related costs including, without limitation, reasonable and necessary legal
fees, resulting from (i) actions or inactions of Wilshire which were taken or
omitted upon the instruction or direction of the Master Servicer or (ii) the
failure of the Master Servicer to perform the obligations of the "Trustee" under
the Servicing Agreement and this Agreement only to the extent that the Master
Servicer has any obligations of the "Trustee". In addition, the Depositor shall
indemnify Wilshire and hold it harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that Wilshire
may sustain in any way related to (a) actions or inactions of Wilshire which
were taken or omitted upon the instruction or direction of the Securities
Administrator or Master Servicer, as applicable, or (b) the failure of the
Securities Administrator or the Master Servicer, as applicable, to perform the
obligations of the "Trustee" under the Servicing Agreement. Wilshire shall make
all distributions under the Servicing Agreement to the Master Servicer by wire
transfer of immediately available funds to:
Xxxxx Fargo Bank, N.A.
ABA Number: #000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: MANA 2007-A2
Distribution Account Number: 00000000
MISCELLANEOUS
8. All demands, notices and communications related to the Mortgage Loans,
this Servicing Agreement shall be in writing and shall be deemed to have been
duly given if personally delivered at or mailed by registered mail, postage
prepaid, as follows:
(a) In the case of Wilshire,
Wilshire Credit Corporation
00000 X.X. Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
Attention: V.P. Client Services
(b) In the case of Depositor,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
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4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MANA 2007-A2
(c) In the case of the Master Servicer or the Securities Administrator,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MANA 2007-A2
9. This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
11. This Agreement shall inure to the benefit of the successors and assigns
of the parties hereto. Any entity into which the Depositor or Wilshire may be
merged or consolidated shall, without the requirement for any further writing,
be deemed the Depositor or Wilshire, respectively, hereunder.
12. This Agreement shall terminate upon a clean up call of the Xxxxxxx
Xxxxx Alternative Note Asset Trust, Series 2007-A2.
13. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WILSHIRE CREDIT CORPORATION
Company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXX FARGO BANK, N.A.
Securities Administrator
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
POOLING AND SERVICING AGREEMENT,
DATED JANUARY 1, 2006
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
MODIFICATIONS TO THE UNDERLYING SERVICING AGREEMENT
1. Article I (Definitions) is hereby modified as follows:
Replacing the definition of Accountant's Attestation in its entirety
with the following:
Accountant's Attestation: A report from a nationally or regionally
recognized firm of independent registered public accountants which is
a member of the American Institute of Certified Public Accountants to
the effect that (i) it has obtained a representation regarding certain
matters from the management of the Servicer, which includes an
assertion as to whether the Servicer 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 the Servicer's compliance with the relevant Servicing Criteria
was fairly stated in all material respects, or it cannot express an
overall opinion regarding the Servicer's assessment of compliance with
the Relevant Servicing Criteria.
Adding the following definition immediately after the definition of
Agreement:
Annual Statement of Compliance: The statement of compliance as
required by Section 11.04 of Exhibit D hereto.
Replacing the definition of Assessment of Compliance in its entirety
with the following:
Assessment of Compliance: An officer's assessment of its compliance
with the Relevant Servicing Criteria during the preceding calendar
year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB.
Revising the definition of Certificate by replacing the word "Trustee"
with "Securities Administrator" in each instance.
Replacing the definition of Certificateholder or Holder in its
entirety with the following:
Certificateholder or Holder: As defined in the Pooling and Servicing
Agreement.
Replacing the definition of Closing Date in its entirety with the
following:
Closing Date: March 30, 2007.
Revising the definition of Collection Account by (i) replacing the
words "Mortgage Investors" with "Alternative Note" and (ii) replacing
"2006-HE1" with "2007-A2".
Replacing the definition of Cut-off Date in its entirety with the
following:
Cut-off Date: March 1, 2007.
Adding the following definition immediately following the definition
of Certificate:
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator and as defined in the
Pooling and Servicing Agreement.
Revising the definition of Distribution Date by replacing "2006" with
"2007".
Replacing the definition of Issuing Entity in its entirety with the
following:
Issuing Entity: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series
2007-A2.
Adding the following definitions immediately after the definition of
Lower Tier REMIC Subordinated Balance Ratio:
Master Servicer: Xxxxx Fargo Bank, N.A.
Master Servicer Collection Account: The separate Eligible Account
created and maintained by the Master Servicer pursuant to the Pooling
and Servicing Agreement in the name of the Master Servicer for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank,
N.A., as Master Servicer, in trust for registered holders of Xxxxxxx
Xxxxx Alternative Note Asset Trust, Mortgage Loan Asset-Backed
Certificates, Series 2007-A2." Funds in the Master Servicer Collection
Account shall be held in trust for the Certificateholders for the uses
and purposes set forth in the Pooling and Servicing Agreement.
Revising the definition of Mortgage Loan Schedule by replacing
"attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit B-3" with the
following: "attached to the Reconstituted Servicing Agreement".
Revising the definition of Optional Termination Amount by replacing
"Section 9.01" with "the Pooling and Servicing Agreement".
Revising the definition of Optional Termination Amount by replacing
the words "costs and expenses" in clause (B) of the such definition
with "costs, expenses and indemnity amounts".
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Adding the following definition immediately after the definition of
Pool Stated Balance:
Pooling and Servicing Agreement: The pooling and servicing agreement,
dated as of March 1, 2007, by and among the Depositor, the Master
Servicer, the Securities Administrator and the Trustee.
Replacing the definition of Prepayment Period in its entirety with the
following:
Prepayment Period: As to any Distribution Date, the calendar month
preceding the month of such Distribution Date.
The definition of REMIC is hereby amended by deleting the second
sentence of such definition.
Adding the following definition immediately after the definition of
Securities Act:
Securities Administrator: Xxxxx Fargo Bank, N.A.
Adding the following definition immediately after the definition of
Servicer Advance Date:
Servicer Information: As defined in Section 11.07(a).
Revising the definition of Servicing Advances by adding the words
"prior liens," immediately before the word "real".
Replacing "0.50%" in the definition of Servicing Fee Rate with
"0.25%".
Replacing "Trustee" in each instance in the definition of Servicing
Transfer Costs with "Master Servicer".
Amending the definition of Subcontractor by inserting "(as defined in
the Pooling and Servicing Agreement)" immediately after the word
"Balance".
Amending the definition of Sub-Servicer by inserting "(as defined in
the Pooling and Servicing Agreement)" immediately after the word
"Balance" in clause (iii) of such definition.
Replacing the definition of Trust Fund in its entirety with the
following:
Trust Fund: The corpus of the Issuing Entity.
Replacing "Xxxxx Fargo Bank, N.A." in the definition of Trustee with
"HSBC Bank USA, National Association".
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2. Section 2.09(b) is amended by inserting ", the Master Servicer" immediately
following "Depositor" in each instance.
3. Article III (Administration and Servicing of Mortgage Loans) is hereby
amended as follows.
Replacing "Trustee" with "Master Servicer" in each instance in each
section of Article III, other than Sections 3.01, 3.03, 3.05 through 3.11, 3.12,
3.14 and 3.15.
Replacing "herein" with "in the Pooling and Servicing Agreement" in
the third sentence of the first paragraph of Section 3.01.
Deleting the last paragraph of Section 3.01, including clauses (a),
(b) and (c) of such paragraph.
Amending Section 3.02 by:
(i) replacing the fifth sentence of clause (a) with the following:
As set forth in Section 11.02, the Servicer shall deliver to the
Master Servicer a copy of any subservicing agreement executed by the
Servicer. The Master Servicer agrees that it will keep any such
subservicing agreement confidential. The Servicer may redact any such
subservicing agreements prior to delivery to remove any fees paid to
any Sub-Servicers. The Master Servicer shall execute any commercially
reasonable confidentiality agreement provided to it by the Servicer
concerning any confidential information in any such Subservicing
Agreement.
(ii) replacing clause (c) with the following:
The Servicer shall not permit a Sub-Servicer that would be
required under this Agreement or any subservicing agreement to deliver
an Annual Statement of Compliance, an Assessment of Compliance and an
Accountant's Attestation to perform any servicing responsibilities
hereunder with respect to the Mortgage Loans unless that Sub-Servicer
first agrees in writing with the Servicer to deliver such Annual
Statement of Compliance, an Assessment of Compliance and an
Accountant's Attestation in such manner and at such times that permits
the Servicer to comply with Sections 3.17 and 3.18 of this Agreement.
Replacing "out of the Certificate Account" with "to the Master
Servicer pursuant to the Pooling and Servicing Agreement" in the
penultimate sentence of the first paragraph of Section 3.04.
Amending Section 3.05 by:
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(i) inserting "as defined in the Pooling and Servicing Agreement"
immediately after "Stated Principal Balance" in the fourth sentence of
clause (a);
(ii) replacing the word "Trustee" with "Master Servicer" in each
instance in the last two paragraphs of clause (d);
(iii) deleting the last sentence of the last paragraph of clause (d);
(iv) replacing clause (e) in its entirety with "[Reserved]";
(v) deleting "or the Certificate Account", "or the Trustee, as
applicable", "(i) in the case of the Collection Account" and "(ii) in
the case of the Certificate Account, the Business Day immediately
preceding the first Distribution Date that follows the date of such
investment (except that if such Permitted Investment is an obligation
of the institution that maintains such Certificate Account or is
otherwise immediately available, then such Permitted Investment shall
mature not later than such Distribution Date) and, in each case" from
the first sentence of clause (f) of such Section; and
(vi) deleting the last sentence of clause (f) of such Section.
Amending Section 3.06 by:
(i) inserting ",condominium or PUD association dues or comparable
items" immediately after the word "premiums" in the first sentence of
the first paragraph; and
(ii) replacing "this Agreement in accordance with Section 9.01 hereof"
with "the Pooling and Servicing Agreement" in the penultimate sentence
of the second paragraph of Section 3.06.
Amending Section 3.07 by:
(i) inserting "the Master Servicer, the Securities Administrator, the
Trustee" immediately after "provide the Depositor," in the first
sentence of the second paragraph;
(ii) inserting the following sentence at the end of the second
paragraph of such Section: "In addition, subject to limitations of
applicable privacy laws, the Servicer may make public information
regarding performance of the Mortgage Loans."
Amending Section 3.08 by:
(i) replacing "Certificate Account" with "Master Servicer Collection
Account" in each instance;
C-5
(ii) deleting "2.02, 2.03 or" from clause (a)(ix);
(iii) replacing "Section 2.03" with "Article II of the Pooling and
Servicing Agreement" in clause (a)(xi);
(iv) replacing "this Agreement pursuant to Section 9.01 hereof" with
"the Pooling and Servicing Agreement" in clause (a)(xiv);
(v) replacing the word "Trustee" with "Master Servicer" in the first
and third full paragraphs of such Section;
(vi) replacing "2:00" in such Section with "2:30" and replacing "the
Servicer shall cause to be withdrawn" with "the Servicer will use
commercially reasonable efforts to cause to be withdrawn";
(vii) replacing "2:00" in the second and third instances with "3:00"
in the paragraph immediately following clause (a)(xiv);
(viii) deleting the words "or the Trustee" and "or the Certificate
Accounts" from the last paragraph of clause (a); and
(ix) deleting clause (b) of such Section.
Amending Section 3.10 by:
(i) amending clause (i) of the first sentence of the first paragraph
of such Section by (A) inserting the word "estimated" immediately
before the word "replacement" and (B) inserting "(which may be the
last known coverage)" immediately after the word "Property";
(ii) replacing the word "Trustee" with "Master Servicer" in the fifth
sentence of the first paragraph and the last sentence of the second
paragraph of such Section; and
(ii) amending the last sentence of the first paragraph of such Section
by (A) replacing the word "original" with "outstanding" in the clause
(i), (B) inserting the word "estimated" immediately before the word
"replacement" in clause (ii) and (C) inserting "(which may be the last
known coverage)" immediately after the word "Property" in clause (ii).
Amending Section 3.11 by:
(i) inserting the words "; and provided further, that the Servicer
need not take any such action if the Servicer believes the collections
and other recoveries in respect of the Mortgage Loan would be
maximized if the Mortgage Loan were not
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accelerated" immediately after the word "Policy" in the first sentence
of such Section;
(ii) replacing "Trustee" with "Master Servicer" in the second sentence
of the first paragraph of such Section;
(iii) replacing "if in the reasonable judgment of the Servicer,
entering into an assumption and modification agreement with a Person
to whom such property shall be conveyed and releasing the original
Mortgagor from liability would be in the best interests of the
Certificateholders" with "or take any of the above actions if the
Servicer believes the collections and other recoveries in respect of
the Mortgage Loan would be maximized if the Mortgage Loan were not
accelerated and such actions not taken" in the fifth sentence of the
first paragraph of such Section; and
(iv) inserting "Master Servicer and" immediately after "shall notify
the" in the seventh sentence of such Section.
Amending Section 3.12 by:
(i) deleting the fourth sentence of clause (a) of such Section;
(ii) replacing the word "knowledge" in the last sentence of the first
paragraph of such Section with "received written notice";
(iii) adding ", which shall not be the Servicer" to the end of the
first sentence of the second paragraph of clause (a);
(iv) deleting the third sentence of the second paragraph of clause
(a);
(v) adding the words ", the Master Servicer and the Securities
Administrator" immediately after the word "Trustee" in each instance
in the third paragraph of clause (a) of such Section;
(vi) replacing the word "would" in the first sentence of the fourth
paragraph of clause (a) with "are expected to";
(vii) replacing the word "Trustee" with "Securities Administrator" in
clause (c) of such Section;
(viii) replacing the words "Certificate Account" with "Distribution
Account (as defined in the Pooling and Servicing Agreement in clause
(c);
(ix) replacing the word "possible" with "likely" in the first sentence
of clause (d);
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(x) inserting "Master Servicer and" immediately preceding "Trustee" in
the last sentence of clause (d); and
(xi) revising the last sentence of clause (e) of such Section by
inserting "as defined in the Pooling and Servicing Agreement"
immediately after the word "Certificates" in each instance.
Amending Section 3.13 by:
(i) replacing the title of such Section with "Release of Mortgage
Files";
(ii) replacing "Trustee or its designee" in the first sentence of the
first paragraph of such Section with "Custodian";
(iii) deleting "Upon a receipt of a copy of such request, the Trustee
or its designee shall promptly release the Mortgage File to the
Servicer, and" from the second sentence of the first paragraph of such
Section, adding "by the Servicer" immediately after the word
"incurred" in the third sentence of the first paragraph of such
Section;
(iv) deleting the fourth sentence of the first paragraph of such
Section;
(v) replacing "designee" with "Custodian" in each instance in the
first sentence of the second paragraph of such Section;
(vi) deleting the second, third, fourth and fifth sentences of the
second paragraph of such Section;
(vii) deleting the third paragraph of such Section;
(viii) [reserved];
(ix) replacing "designee" with "Custodian" in each instance in the
fourth paragraph of such Section;
(x) adding "or its Custodian" immediately after "returned to the
Trustee" in the second sentence of the fourth paragraph of such
Section; and
(xi) adding the following sentence to the end of such Section:
The Servicer shall have no liability for, and shall be excused
from, any non-performance hereunder to the extent such non-performance
is solely and directly caused by (i) the failure of the Custodian to
release (and not caused by any failure or non-performance by the
Servicer), in a manner consistent with the terms of the Custodial
Agreement, any Mortgage File requested by the Servicer
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pursuant to a Request for Release and (ii) the failure of the Trustee
to execute a request for the execution of documents.
Amending Section 3.14 by replacing "Certificate Account" with "Master
Servicer Collection Account, the Distribution Account (as defined in
the Pooling and Servicing Agreement)" and replacing "Trustee" with
"Master Servicer or the Securities Administrator" in the second
sentence of such Section.
Amending Section 3.15 by replacing "Trustee" with "Master Servicer" in
the last sentence of the second paragraph of such Section.
Replacing Section 3.16 in its entirety with the following:
Section 3.16 [Reserved].
Replacing Section 3.19 in its entirety with the following:
Section 3.19 Subordination of Liens.
In connection with any governmental program under which a
Mortgagor may obtain a benefit in the event the related Mortgaged
Property is subject to a disaster provided that the Mortgagor files a
covenant or other lien against the Mortgaged Property and is required
to obtain the subordination thereto of the Mortgage, the Servicer may
cause such subordination to be executed and filed provided that either
(i) the related Mortgage Loan is in default or default with respect to
such Mortgage Loan is imminent or (ii) such subordination and
participation in such governmental program will not result in a change
in payment expectations with respect to such Mortgage Loan. For
purposes of the preceding sentence, a change in payment expectations
occurs if, as a result of such subordination and participation in such
governmental program, (1) there is a substantial enhancement of the
Mortgagor's capacity to meet the payment obligations under the
Mortgage Loan and that capacity was primarily speculative prior to
such subordination and participation in such governmental program and
is adequate after such subordination and participation in such
governmental program or (2) there is a substantial impairment of the
Mortgagor's capacity to meet the payment obligations under the
Mortgage Loan and that capacity was adequate prior to such
subordination and participation in such governmental program and is
primarily speculative after such subordination and participation in
such governmental program. The preceding sentence and clause (ii) of
the second preceding sentence are intended to comply with Treasury
Regulations Section 1.1001-3(e)(4) and shall be interpreted in
accordance therewith.
Replacing Section 3.24 in its entirety with the following:
Section 3.24 Information to the Master Servicer.
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No later than the tenth (10th) calendar day of each month (or if
such tenth day is not a Business Day, the Business Day immediately
preceding such tenth day), the Servicer shall forward to the Master
Servicer reports in the format set forth in Exhibit X-0, Xxxxxxx X-0
and Exhibit M-3 hereto (or such other format, with respect to Exhibit
M-1 and Exhibit M-2, as mutually agreed by the Servicer and the Master
Servicer), with respect to monthly remittances, defaulted Mortgage
Loans and realized loss calculations, respectively.
Replacing "Trustee" with "Master Servicer" in the first sentence of
Section 3.25.
Replacing Section 3.26 in its entirety with the following:
Section 3.26 Solicitation.
The Servicer may not solicit or refer to a mortgage originator,
who may or may not be an affiliate of the Depositor or the Servicer,
any Mortgagor for refinancing or otherwise take action to encourage
refinancing.
Inserting the following new Sections 3.28 and 3.29 immediately after
Section 3.27:
Section 3.28 Special Servicing Agreements.
The Servicer may enter into a special servicing advisory
agreement with (i) a holder of (a) the Class R Certificate, (b) the
Class C Certificate, (c) one or more other Class of subordinated
certificates issued by the Issuing Entity and/or (d) a NIM Note and/or
(ii) an advisor designated by any of the foregoing. Pursuant to such
agreement, the Servicer may provide such holder or advisor, in its
capacity as special servicing advisor, with loan-level information
with respect to the Mortgage Loans, and such person may advise the
Servicer with respect to efforts to maximize recoveries with regard to
the Mortgage Loans, including, without limitation, the commencement of
foreclosure proceedings or other actions.
Section 3.29 Servicing Rights Owner.
At the request of MLML (the "Servicing Rights Owner"), the
Servicer shall resign as Servicer of the Mortgage Loans upon the
selection and appointment of a successor servicer by the Servicing
Rights Owner; provided that the Servicing Rights Owner delivers to the
Master Servicer, the Trustee and the Securities Administrator a letter
indicating that such successor servicer designated by the Servicing
Rights Owner meets the eligibility requirements for a successor
servicer. No appointment of a successor servicer hereunder shall be
effective until the Master Servicer shall have consented thereto. Upon
such appointment, at the date specified in such letter such successor
servicer will become a servicer
C-10
pursuant to the terms of this Agreement. Any successor servicer shall
be an institution that is a Xxxxxx Xxx and Xxxxxxx Mac approved
seller/servicer in good standing, that has a net worth of at least
$15,000,000, and that is willing to service the Mortgage Loans and
executes and delivers to the Depositor, the Securities Administrator
and the Trustee an agreement accepting such delegation and assignment,
that contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this Agreement;
and provided further that each Rating Agency acknowledges that its
rating of the Certificates in effect immediately prior to such
assignment and delegation will not be qualified or reduced as a result
of such assignment and delegation.
4. Article IV (Distributions) is hereby amended as follows:
Amending Section 4.01 by:
(i) replacing "Trustee" with "Master Servicer" in each instance;
(ii) inserting "(as defined in the Pooling and Servicing Agreement)"
immediately after "Stated Principal Balance" in each instance in the
last sentence of the first paragraph of clause (a); and
(iii) replacing "Certificate Account" with "Master Servicer Collection
Account" in the first sentence of the second paragraph of clause (a).
Amending Section 4.02 by inserting "the Master Servicer, the
Securities Administrator," immediately before "the Issuing Entity" in
the second paragraph of such Section.
5. Article VI (The Depositor and the Servicer) is hereby amended as follows.
Replacing "Trustee" with "Securities Administrator" in each instance
in Section 6.03.
Adding "Trustee, Master Servicer, Depositor, the Securities
Administrator," immediately after "liability to the" in the first
sentence of Section 6.03.
Replacing "Trustee" with "Master Servicer" in each instance in
Sections 6.04 and 6.05.
Replacing "Persons performing servicing for mortgage loans purchased
by Xxxxxx Xxx or Xxxxxxx Mac" with "the Servicer" in the second
sentence of Section 6.05.
Inserting ", as defined in the Pooling and Servicing Agreement" after
the word "Certificate" in the first sentence of Section 6.06.
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6. Article VII (Default; Termination of Servicer) is hereby amended as
follows.
Replacing "Trustee" with "Master Servicer" in each instance in
Sections 7.01(a).
Deleting "other than its rights as a Certificateholder hereunder" in
each instance in Section 7.01.
Amending Section 7.01(a)(i) by:
(i) inserting ", Master Servicer Collection Account" immediately after
"Collection Account" in such Section;
(ii) replacing "Certificate Account" with "Distribution Account (as
defined in the Pooling and Servicing Agreement)"; and
(iii) replacing "prior to the related Distribution Date" with
"Distribution Account Deposit Date (as defined in the Pooling and
Servicing Agreement)".
Deleting "or the Depositor" in clause (a)(ii).
Replacing clause (a)(vi) with the following:
(vi) any failure by the Servicer, any Subservicer or any Subcontractor
to deliver any information, report, certification or accountants'
letter when and as required under Section 11.04, 11.05 or 11.06, which
continues unremedied for a period of fourteen calendar days after the
date upon which written notice of such failure, requiring the same to
be remedied, shall have been given to the Servicer, or any failure by
the Servicer to identify pursuant to Section 11.06(b) any
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, shall have been given to the
Servicer, shall constitute an Event of Default with respect to the
Servicer under this Agreement, and shall entitle the Master Servicer
and/or the Depositor, as applicable, to terminate the rights and
obligations of the Servicer as servicer under this Agreement in
accordance with Section 7.01 hereof; provided that to the extent that
any provision of this Agreement expressly provides for the survival of
certain rights or obligations following termination of the Servicer as
servicer, such provision shall be given effect;
(vii) any failure by the Servicer, any Subservicer or any
Subcontractor to duly perform, within the required time period, its
obligations under Sections 11.03 of this Agreement.
Amending Section 7.02 by:
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(i) replacing "Trustee" with "Master Servicer" in each instance in
such Section;
(ii) inserting "when and" immediately after "Trustee shall," in the
first sentence of the first paragraph of such Section;
(iii) deleting "the appointment of which does not adversely affect the
then current rating of the Certificates by each Rating Agency" in the
third sentence of the first paragraph of such Section; and
(iv) deleting "Depositor and the" and "; and provided further that
each Rating Agency acknowledges that its rating of the certificates in
effect immediately prior to such assignment and delegation will not be
qualified or reduced as a result of such assignment and delegation"
from the fourth sentence of the first paragraph of such Section.
7. Article X (Miscellaneous Provisions) is hereby amended as follows.
Section 10.01 is hereby replaced in its entirety with the following:
10.01 Amendment
This Agreement may be amended from time to time by the Depositor,
the Servicer and the Master Servicer by written agreement.
Amending Section 10.07 by replacing "Trustee" with "Master Servicer"
in the first sentence of such Section.
Amending Section 10.09 by (i) replacing "Trustee" with "Master
Servicer" in each instance in the first sentence of such Section and
(ii) replacing "or the Trustee" with "or the "Master Servicer" and
replacing "of the Trustee" with "of the Securities Administrator" in
the second sentence of such Section.
8. A new article is added immediately following Section 10.11 to read as
indicated in Exhibit D attached hereto.
9. Exhibits A, D, X-0, X-0, X, X, X, X, X, X-0, X-0, X-0, X-0, X-0, X-0, P, R,
S and T and Schedules X, Y and Z shall be inapplicable to the Servicing
Agreement.
10. Exhibit I is hereby replaced in its entirety with Exhibit I attached
hereto.
11. Exhibit L is hereby replaced in its entirety with Exhibit L attached
hereto.
12. Exhibit M-1 is hereby replaced in its entirety with Exhibit M-1 attached
hereto.
13. Exhibit M-2 is hereby replaced in its entirety with Exhibit M-2 attached
hereto.
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14. Exhibit M-3 is hereby added as Exhibit M-3 attached hereto.
15. Exhibit Q is hereby replaced in its entirety with Exhibit Q attached
hereto.
C-14
EXHIBIT D
ARTICLE XI.
COMPLIANCE WITH REGULATION AB
Section 11.01. Intent of the Parties; Reasonableness.
The Master Servicer and the Servicer acknowledge and agree that the purpose
of Article 11 of this Agreement is to facilitate compliance by the Master
Servicer and the Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Neither the Master Servicer nor the
Depositor shall exercise its right to request delivery of information or other
performance under these provisions other than in good faith, or for purposes
other than compliance with the Securities Act, the Exchange Act and the rules
and regulations of the Commission thereunder. The Servicer acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Master
Servicer or the Depositor in good faith for delivery of information required
under these provisions on the basis of evolving interpretations of Regulation
AB. The Servicer shall cooperate reasonably with the Master Servicer to deliver
to the Securities Administrator, the Master Servicer (including any of its
assignees or designees) and the Depositor, any and all statements, reports,
certifications, records and any other information necessary to permit the
Securities Administrator, the Master Servicer or the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to the
Servicer, any Subservicer, or the servicing of the Mortgage Loans, to be
necessary in order to effect such compliance. The Servicer shall not be required
to comply with this Article XI with respect to any fiscal year as to which the
Servicer was not servicing Mortgage Loans hereunder to the extent that the
Depositor determines that compliance is not required by law under the Form 15
Suspension Notification is filed.
Section 11.02. Subservicing Agreements.
On or before March 1 of each year, the Servicer shall deliver to the Master
Servicer a copy of any subservicing agreement executed by the Servicer not
previously provided. The Master Servicer agrees that it will keep any such
subservicing agreement confidential. The Servicer may redact any such
subservicing agreements prior to delivery to remove any fees paid to any
Sub-Servicers. The Master Servicer shall execute any commercially reasonable
confidentiality agreement provided to it by the Servicer concerning any
confidential information in any such Subserving Agreement.
Section 11.03. Information to Be Provided by the Servicer.
The Servicer shall, as promptly as practicable following notice to or
discovery by the Servicer, provide to the Master Servicer and the Depositor (in
writing and in form and substance reasonably satisfactory to the Master Servicer
and the Depositor) the information specified in paragraph (a) of this Section.
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Servicer
shall (or shall cause each Subservicer to) (i) provide prompt notice to the
Master Servicer and the Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B) any
affiliations or relationships as set forth in Items 1119(b) and (c) of
Regulation AB that develop following the Closing Date between the Servicer, any
Subservicer or and any of the parties specified in Item 1119 of Regulation AB,
(C) any Event of Default under the terms of this Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Servicer, and
(E) the Servicer's entry into an agreement with a Subservicer to perform or
assist in the performance of any of the Servicer's obligations under this
Agreement and (ii) provide to the Master Servicer and the Depositor a
description of such proceedings, affiliations or relationships, as set forth in
Sections 1119(b) and (c) of Regulation AB.
(b) As a condition to the succession to the Servicer or any Subservicer as
servicer or subservicer under this Agreement by any Person (i) into which the
Servicer or such Subservicer may be merged or consolidated, or (ii) which may be
appointed as a successor to the Servicer or any Subservicer, the Servicer shall
provide to the Master Servicer and the Depositor, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Master Servicer and the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Master Servicer and the Depositor, all information reasonably requested
by the Master Servicer or the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(c) In addition to such information as the Servicer, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of the securitization transaction, the Servicer or such
Subservicer, as applicable, shall, to the extent the Servicer or such
Subservicer has knowledge, provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice of the occurrence
of any of the following events that have not already been disclosed to such
party through the Servicer's prior notice or regular servicing data along with
all information, data, and materials related thereto as may be required to be
included in the related distribution report on Form 10-D (as specified in the
provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB); and
D-2
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation
AB).
(d) The Servicer shall provide to the Master Servicer and the Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports as required
pursuant to the Servicing Agreement, and, upon reasonable request, such other
information related to the Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder.
Section 11.04. Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2008, the
Servicer shall deliver to the Master Servicer and the Depositor a statement of
compliance addressed to the Master Servicer and the Depositor and signed by an
authorized officer of the Servicer, to the effect that (i) a review of the
Servicer's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement during
such period has been made under such officer's supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and the
status thereof.
Section 11.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2008, the
Servicer shall:
(i) deliver to the Master Servicer and the Depositor a report (in
form and substance reasonably satisfactory to the Master Servicer and
the Depositor) regarding the Servicer's assessment of compliance with
the Servicing Criteria during the immediately preceding calendar year,
as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be addressed to the Master
Servicer and the Depositor and signed by an authorized officer of the
Servicer, and shall address each of the "Applicable Servicing
Criteria" specified on Exhibit Q hereto. Solely for the purpose of
Section 1122(d)(3)(iii) of Exhibit Q, the term "investor" shall mean
the Master Servicer;
(ii) deliver to the Master Servicer and the Depositor a report of
a registered public accounting firm reasonably acceptable to the
Master Servicer and the Depositor that attests to, and reports on, the
assessment of compliance made by the Servicer and delivered pursuant
to the preceding paragraph. Such attestation shall be in accordance
with Rules 1 02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
D-3
(iii) cause each Subservicer, and each Subcontractor determined
by the Servicer pursuant to Section 11.06(b) to be "participating in
the servicing function" within the meaning of Item 1122 of Regulation
AB, if any, and deliver to the Master Servicer and the Depositor an
assessment of compliance and accountants' attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor
described in clause (iii), if any, to provide, to the Depositor, the
Master Servicer and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to the securitization transaction a
certification, signed by the appropriate officer of the Servicer, in
the form attached hereto as Exhibit L.
The Servicer acknowledges that the parties identified in clause (a)(iv) above
may rely on the certification provided by the Servicer pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 11.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit Q hereto delivered to the
Master Servicer concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 11.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section 11.06.
Section 11.06. Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of any
Subservicer that is required to provide an Annual Statement of Compliance or an
Assessment of Compliance to fulfill any of the obligations of the Servicer as
servicer under this Agreement unless the Servicer complies with the provisions
of paragraph (a) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor that is required to provide an
Assessment of Compliance, and shall not permit any Subservicer that is required
to provide an Assessment of Compliance, to hire or otherwise utilize the
services of any Subcontractor, to fulfill any of the obligations of the Servicer
as servicer under this Agreement unless the Servicer complies with the
provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of the
Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subservicer. The Servicer shall cause any Subservicer used by
the Servicer (or by any Subservicer) for the benefit of the Master Servicer and
the Depositor to comply with the provisions of this Section and with Sections
11.03(b), (c) and (d), 11.04, 11.05 and 11.07 of this Agreement to the same
extent as if
D-4
such Subservicer were the Servicer, and to provide the information required with
respect to such Subservicer under Section 11.03(d) of this Agreement. The
Servicer shall be responsible for obtaining from each such Subservicer and
delivering to the Master Servicer and the Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 11.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Section 11.05 and any certification required to be delivered
to the Person that will be responsible for signing the Sarbanes Certification
under Section 11.05 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of the
Securities Administrator, the Master Servicer or the Depositor to the
utilization of any Subcontractor. The Servicer shall promptly upon request
provide to the Master Servicer and the Depositor (or any designee of the
Depositor, such as an administrator) a written description (in form and
substance reasonably satisfactory to the Depositor and the Master Servicer) of
the role and function of each such Subcontractor utilized by the Servicer or any
Subservicer, specifying (i) the identity of each such Subcontractor, (ii) which
(if any) of such Subcontractors are "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, and (iii) which elements of
the Servicing Criteria will be (x) addressed in assessments of compliance
provided by each Subcontractor identified pursuant to clause (ii) of this
paragraph or (y) provided by the Servicer in accordance with Regulation AB
telephone interpretation 17.06.
As a condition to the utilization of any Subcontractor determined by the
Servicer to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, the Servicer shall cause any such Subcontractor used
by the Servicer (or by any Subservicer) for the benefit of the Master Servicer
and the Depositor to comply with the provisions of Sections 11.05 and 11.07 of
this Agreement to the same extent as if such Subcontractor were the Servicer for
those criteria in Exhibit Q for which the Subcontractor is responsible. The
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Master Servicer and the Depositor any assessment of compliance
and attestation and the other certifications required to be delivered by such
Subcontractor under Section 11.05, in each case as and when required to be
delivered.
Section 11.07. Indemnification; Remedies.
The Servicer shall indemnify the Master Servicer, each affiliate of the
Master Servicer, the Sponsor and the Issuing Entity; each Person (including, but
not limited to, the Master Servicer if applicable) responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to the securitization transaction; each broker dealer acting as
underwriter, placement agent or initial purchaser, each Person who controls any
of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees, agents and affiliates of each of the
foregoing and of the Depositor (each, an "Indemnified Party"), and shall hold
each of them
D-5
harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
data, accountants' letter or other material provided under this
Article 11 by or on behalf of the Servicer, or provided under this
Article 11 by or on behalf of any Subservicer or Subcontractor
(collectively, the "Servicer Information"), or (B) the omission or
alleged omission to state in the Servicer Information a material fact
required to be stated in the Servicer Information or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by
way of clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Servicer Information and not to
any other information communicated in connection with a sale or
purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or
separately from such other information;
(ii) any breach by the Servicer of its obligations under this
Article 11, including particularly any failure by the Servicer, any
Subservicer or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as
required under this Article 11, including any failure by the Servicer
to identify pursuant to Section 11.06(b) any Subcontractor
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB; or
(iii) the negligence bad faith or willful misconduct of the
Servicer in connection with its performance under this Article 11.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Servicer agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
This indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
Section 11.08. Third Party Beneficiary.
For purposes of this Article 11 and any related provisions thereto, the
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
D-6
EXHIBIT I
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement, dated as of March 30, 2007 among HSBC Bank USA,
National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number: _____________________________________________________
Mortgagor Name, Address & Zip Code: _______________________________________
Reason for Requesting Documents (check one):
___ 1. Mortgage Paid in full
___ 2. Foreclosure
___ 3. Substitution
___ 4. Other Liquidation (Repurchases, etc.)
___ 5. Nonliquidation Reason: ________________________________
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
Date:
----------------------------------
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------------- ----------------------------------------
Signature Date
Documents returned to Custodian:
------------------------------------- ----------------------------------------
Custodian Date
I-2
EXHIBIT L
FORM OF ANNUAL CERTIFICATION
Re: The [_____] agreement dated as of [_____ l, 200[__] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ____________________________, the _______________________ of [NAME
OF COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and
the [Master Servicer] [Securities Administrator] [Trustee], and their officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed, or persons under my supervision have reviewed,
the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the "Compliance Statement"), the report on
assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by
the Company during 200[ ] that were delivered by the Company to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee] pursuant
to the Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report
required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
X-0
XXXXXXX X-0
STANDARD FILE LAYOUT - MASTER SERVICING
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ------------------------------------ ------- -------------------- ---------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan Text up to 10 digits 10
by the Servicer. This may be
different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the Maximum length of 30 30
file. It is not separated by first (Last, First)
and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or 11
scheduled interest payment that a dollar signs ($)
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported 4 Max length of 6 6
by the Servicer.
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported by
the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan 4 Max length of 6 6
as reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan 2 No commas(,) or 11
as reported by the Servicer. dollar signs ($)
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or 11
reported by the Servicer. dollar signs ($)
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or 11
balance at the beginning of the dollar signs ($)
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or 11
balance at the end of the processing dollar signs ($)
cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or 11
applied. dollar signs ($)
SERV_CURT_DATE_1 The curtailment date associated with MM/DD/YYYY 10
the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or 11
first curtailment amount, if dollar signs ($)
applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or 11
applied. dollar signs ($)
SERV_CURT_DATE_2 The curtailment date associated with MM/DD/YYYY 10
the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or 11
second curtailment amount, if dollar signs ($)
applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or 11
applied. dollar signs ($)
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or 11
third curtailment amount, if dollar signs ($)
applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or 11
reported by the Servicer. dollar signs ($)
PIF_DATE The paid in full date as reported by MM/DD/YYYY 10
the Servicer.
ACTION_CODE The standard FNMA numeric code used Action Code Key: 2
to indicate the default/delinquent 15=Bankruptcy,
status of a particular loan. 30=Foreclosure, ,
60=PIF,
63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest 2 No commas(,) or 11
adjustment as reported by the dollar signs ($)
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or 11
amount, if applicable. dollar signs ($)
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or 11
applicable. dollar signs ($)
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or 11
as a loss, if applicable. dollar signs ($)
SCHED_BEG_PRIN_BAL The scheduled outstanding principal 2 No commas(,) or 11
amount due at the beginning of the dollar signs ($)
cycle date to be passed through to
investors.
SCHED_END_PRIN_BAL The scheduled principal balance due 2 No commas(,) or 11
to investors at the end of a dollar signs ($)
processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or 11
reported by the Servicer for the dollar signs ($)
current cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or 11
less the service fee amount for the dollar signs ($)
current cycle as reported by the
Servicer -- only applicable for
Scheduled/Scheduled Loans.
M-1-2
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or 11
collected by the Servicer for the dollar signs ($)
current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or 11
less the service fee amount for the dollar signs ($)
current reporting cycle as reported
by the Servicer -- only applicable
for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or 11
borrower prepays on his loan as dollar signs ($)
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or 11
the loan waived by the servicer. dollar signs ($)
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can 30
be alpha or numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or 11
and interest advances made by dollar signs ($)
Servicer.
Flag to indicate if the repurchase Y=Breach
BREACH_FLAG of a loan is due to a breach of N=NO Breach
Representations and Warranties Let blank if N/A
M-1-3
EXHIBIT M-2
STANDARD FILE LAYOUT - DELINQUENCY REPORTING
*The column/header names in BOLD are the minimum fields Xxxxx Fargo must receive
from every Servicer
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT COMMENT
------------------------------ --------------------------------------------------- ------- ----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer.
This may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the
originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external
servicer to identify a group of loans in their
system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to MM/DD/YYYY
the servicer at the end of processing cycle, as
reported by Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion For
Relief Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan
Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to MM/DD/YYYY
occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or
sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the MM/DD/YYYY
Servicer.
REO_CLOSING_DATE The date the REO sale of the property is scheduled MM/DD/YYYY
to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs 2
are completed pursuant to a broker's price opinion
or appraisal.
IF APPLICABLE:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why the
loan is in default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With MM/DD/YYYY
Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
M-2-2
MOTION_FOR_RELIEF_DATE The date the Motion for Relief was filed 10 MM/DD/YYYY
FRCLSR_BID_AMT The foreclosure sale bid amount 11 No commas(,) or
dollar signs ($)
FRCLSR_SALE_TYPE The foreclosure sales results: REO, Third Party,
Conveyance to HUD/VA
REO_PROCEEDS The net proceeds from the sale of the REO No commas(,) or
property. dollar signs ($)
BPO_DATE The date the BPO was done.
CURRENT_FICO The current FICO score
HAZARD_CLAIM_FILED_DATE The date the Hazard Claim was filed with the Hazard 10 MM/DD/YYYY
Insurance Company.
HAZARD_CLAIM_AMT The amount of the Hazard Insurance Claim filed. 11 No commas(,) or
dollar signs ($)
HAZARD_CLAIM_PAID_DATE The date the Hazard Insurance Company disbursed the 10 MM/DD/YYYY
claim payment.
HAZARD_CLAIM_PAID_AMT The amount the Hazard Insurance Company paid on the 11 No commas(,) or
claim. dollar signs ($)
ACTION_CODE Indicates loan status Number
NOD_DATE MM/DD/YYYY
NOI_DATE MM/DD/YYYY
ACTUAL_PAYMENT_PLAN_START_DATE MM/DD/YYYY
ACTUAL_PAYMENT_ PLAN_END_DATE
ACTUAL_REO_START_DATE MM/DD/YYYY
REO_SALES_PRICE Number
REALIZED_LOSS/GAIN As defined in the Servicing Agreement Number
STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM-Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- MISC- Anything else approved by the PMI or Pool Insurer
M-2-3
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The OCCUPANT CODE field should show the current status of the property code as
follows:
- Mortgagor
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
M-2-4
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
M-2-5
STANDARD FILE CODES - DELINQUENCY REPORTING
The FNMA DELINQUENT STATUS CODE field should show the Status of Default as
follows:
STATUS CODE STATUS DESCRIPTION
----------- ------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
X-0-0
XXXXXXX X-0
CALCULATION OF REALIZED LOSS/GAIN FORM 332- INSTRUCTION SHEET
NOTE: DO NOT NET OR COMBINE ITEMS. SHOW ALL EXPENSES INDIVIDUALLY AND ALL
CREDITS AS SEPARATE LINE ITEMS. CLAIM PACKAGES ARE DUE ON THE REMITTANCE
REPORT DATE. LATE SUBMISSIONS MAY RESULT IN CLAIMS NOT BEING PASSED UNTIL
THE FOLLOWING MONTH. THE SERVICER IS RESPONSIBLE TO REMIT ALL FUNDS PENDING
LOSS APPROVAL AND /OR RESOLUTION OF ANY DISPUTED ITEMS.
The numbers on the 332 form correspond with the numbers listed below.
LIQUIDATION AND ACQUISITION EXPENSES:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax,
interest, penalty. Advances prior to default require evidence of
servicer efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
1. CREDITS:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis (______).
M-3-2
CALCULATION OF REALIZED LOSS/GAIN FORM 332
Prepared by: __________________ Date: ______________________________
Phone: ________________________ Email Address: _____________________
Servicer Loan No. Servicer Name Servicer Address
________________________ _________________________ _________________________
XXXXX FARGO BANK, N.A. LOAN NO. _____________________________
Borrower's Name: __________________________________________________________
Property Address: _________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount ________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $________________ (1)
(2) Interest accrued at Net Rate ________________ (2)
(3) Accrued Servicing Fees ________________ (3)
(4) Attorney's Fees ________________ (4)
(5) Taxes (see page 2) ________________ (5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________ (7)
(8) Utility Expenses ________________ (8)
(9) Appraisal/BPO ________________ (9)
(10) Property Inspections ________________ (10)
(11) FC Costs/Other Legal Expenses ________________ (11)
(12) Other (itemize) ________________ (12)
Cash for Keys__________________________ ________________ (12)
HOA/Condo Fees_______________________ ________________ (12)
______________________________________ ________________ (12)
TOTAL EXPENSES $________________ (13)
CREDITS:
(14) Escrow Balance $________________ (14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
M-3-3
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a)
HUD Part A
________________ (18b)
HUD Part B
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ ________________ (21)
TOTAL CREDITS $________________ (22)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $________________ (23)
M-3-4
ESCROW DISBURSEMENT DETAIL
TYPE
(TAX /INS.) DATE PAID PERIOD OF COVERAGE TOTAL PAID BASE AMOUNT PENALTIES INTEREST
----------- --------- ------------------ ---------- ----------- --------- --------
M-3-5
EXHIBIT Q
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------------------------------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers X
and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and X
procedures are instituted to monitor the third party's performance and compliance
with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the
mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period in the amount
of coverage required by and otherwise in accordance with the terms of the transaction
agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank accounts X
and related bank clearing accounts no more than two business days following receipt,
or such other number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are X
made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, X
and any interest or other fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts X
established as a form of overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as X
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.
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------------------------------- ----------
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 X
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days specified in the
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are maintained X
in accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other
terms set forth in the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C) are filed with
the Commission as required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid principal balance and
number of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes, X
distribution priority and other terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X**
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, X
or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the transaction X
agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the transaction X
agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and X
approved in accordance with any conditions or requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the X
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related
Q-2
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------------------------------- ----------
mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's records X
with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans (e.g., X
loan modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds X
in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated,
conducted and concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a mortgage X
loan is delinquent in accordance with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable X
rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such X
funds are analyzed, in accordance with the obligor's mortgage loan documents, on at
least an annual basis, or such other period specified in the transaction agreements;
(B) interest on such funds is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C) such funds are returned to
the obligor within 30 calendar days of full repayment of the related mortgage loans,
or such other number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are made on X
or before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been received by
the servicer at least 30 calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of an X
obligor are paid from the servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to the X
obligor's records maintained by the servicer, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in X
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1)
Q-3
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- ------------------------------------------------------------------------------------- ----------
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
** Solely for the purpose of Section 1122(d)(3)(iii), the term "investor"
shall mean the Master Servicer.
Q-4
